Law, Land Tenure and Gender Review: Southern Africa

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UNITED NATIONS HUMAN SETTLEMENTS PROGRAMMEP.O. Box 30030, GPO Nairobi 00100, KENYA

Telephone: 254-20-7623120; Fax: 254-20-7624266/7 (Central Office)E-mail: [email protected]; Website:http//www.unhabitat.org

HS/789/05EISBN NUMBER (Series) : 92-1-131768-1

ISBN NUMBER (Volume) : 92-1-131774-6

LAND TENURE, HOUSING RIGHTS AND GENDER

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L a w, L a n d Te n u r e a n d G e n d e r Re v i e w : S o u t h e r n A f r i c a

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Land Tenure, Housing Rights and Gender Review: Southern Afr ica


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2005

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Law, Land Tenure and Gender Review Series: Southern Africa

Copyright (C) United Nations Human Settlements Programme (UN-HABITAT), 2005

All Rights reservedUnited Nations Human Settlements Programme (UN-HABITAT)P.O. Box 30030, Nairobi, KenyaTel: +254 20 7621 234Fax: +254 20 7624 266Web: www.unhabitat.org

Disclaimer

The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning delimitation of its frontiers or boundaries, or regarding its economic system or degree of development. The analysis, conclusions and recommendations of this publication do not necessarily reflect the views of the United Nations Human Settlements Programme, the Governing Council of the United Nations Human Settlements Programme, or its Member States.

HS/789/05E

ISBN Number(Series): 92-1-131768-1

ISBN Number:(Volume) 92-1-131774-6

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Foreword To Southern Africa Law And Land Tenure Review

Africa is currently the region of the world that is witnessing the most rapid rate of urbanisation. The Southern African sub-region is no exception. The chaotic manifestations of rapid urbanisation include poor and inadequate infrastructure and services, urban poverty and the proliferation of slums and informal settlements. The precarious nature of land tenure characterizing these settle-ments renders millions of people vulnerable to evictions. Their illegal status further hinders their access to basic infrastructure and services, a key challenge that has to be overcome in order to attain the Millennium Development Goals of improved water and sanitation, gender equality, health, education, nutrition and the prevention of diseases.

Through the generous support of the Government of the Netherlands, UN-Habitat is pleased to publish its review of the legal and policy frameworks governing urban land tenure in Southern Africa. In addition to an overview of the situation in all ten countries of the sub-region, the present report contains four case studies which analyse the specific cases of Lesotho, Mozambique, Namibia and Zambia. These case studies provide a comprehensive examination of the laws and policies governing urban land tenure, with a special focus on their impact on women’s rights to land and housing. National experts in each country have conducted extensive research to reveal the often-complex legal issues which hinder or enable the efforts of Governments, local authorities and their civil society partners in improving the living conditions of the urban poor. The study reveals that the sub-region is characterised by overlapping legal regimes. These include pre-colonial customary law which co-exists with a mixture of outdated and often draconian colonial laws and more recent legislation.

Strengthened security of tenure for the urban poor of Southern Africa is an essential step towards sustainable urbanisation and development of the sub-region. Without secure tenure, the prospects for local economic development, a safe and healthy environment, and stable homes for future generations to grow up in will remain bleak. Secure tenure alone will, however, not be sufficient and a clear message that emerges from this review is that good local governance is essential for tenure security programmes are to achieve their desired goals and effectiveness.

This review contains findings and recommendations for both immediate and longer-term law reform to strengthen the tenure rights of all people, especially the poor and women. While they will further guide and inform UN-HABITAT’s normative work through its two Global Campaigns for Secure Tenure and Urban Governance, it is my sincere hope they will contribute to furthering broad-based dialogue and engagement in land reform and security of tenure in all countries in Southern Africa in support of attaining the Millennium Development Goals.

Mrs. Anna Kajumulo TibaijukaExecutive DirectorUnited Nations Human Settlements Programme(UN-HABITAT)

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Acknowledgements

Global Coordinator and Substantive Editor: Marjolein Benschop, UN-HABITAT

Regional Coordinator Law, Land Tenure and Gender Review in Southern Africa:

Stephen Berrisford and Theunis Roux

Regional Overview and summary of Poverty Reduction Strategy Papers: Stephen Berrisford, Theunis Roux and Michael Kihato

Women’s rights sections in regional overview: Joyce McMillan, Women and Law in Southern Africa

Executive Summary, Introduction, restructuring and shortening of final draft: Stephen Berrisford and Michael Kihato

Editing: Greg Rosenberg

Zambia Chapter: John Kangwa Department of Urban and Regional StudiesSchool of the Built EnvironmentCopperbelt UniversityPO Box 21692Kitwe, ZAMBIATel/Fax: +260 2 225 086Cell: +260 97 803 635Email: [email protected]

Joyce McMillan, Women and Law in Southern Africa, provided additional information on the constitutional review, women’s marital property and inheritance rights.

Henry Machina, Coordinator of the Zambia Land Alliance, commented and provided additional information on the land policy section.

John Kangwa wishes to acknowledge and thank the following persons:

Mr. William Nyirenda (State Counsel) for reading through the draft and offering useful comments;

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Mr. Kennedy Bota for various source materials;

Mrs. Emelda Banda (NGOCC-Kitwe Office)for making available a copy of the WLSA publication ‘Inheritance in Zambia - Law and Practice’ from their library for many months during the course of the research;

Ms. Christine Mulasikwanda (National Legal Aid Clinic for Women - Ndola) for source material on jurispru-dence;

and the many others too numerous to mention who provided interview data and access to information and various documents.

This publication was made possible through funding from the Government of the Netherlands.

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List of Abbreviations

AG Administrator General

AIDS Acquired immunodeficiency syndrome

AU African Union

Cap. Chapter

CBO Community-based organisation

CCJDP Catholic Commission for Justice, Development and Peace

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women

CESCR Covenant on Economic, Social and Cultural Rights

CIC Children in Crisis

CLIP Copperbelt Livelihoods Improvement Programme

CLRC Copperbelt Land Rights Centre

DC District Commissioner

DDCC District Development Coordinating Committee

EFZ Evangelical Fellowship of Zambia

HIV Human immunodeficiency virus

HSIA Housing (Statutory and Improvement Areas) Act

IRUD Integrated Rural Development Initiative

ISA Intestate Succession Act

LAZ Law Association of Zambia

MMD Movement for Multiparty Democracy

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NAPSSF National Association for Peasants and Small-scale Farmers

NGO Non-governmental organisation

NGOCC Non-Governmental Organisations Coordinating Committee

NHA National Housing Authority

NHP National Housing Policy

NLACW National Legal Aid Clinic for Women

PDCC Provincial Development Coordinating Committee

PHI Presidential Housing Initiative

PRSP Poverty Reduction Strategy Plan

PSRP Public Service Reform Programme

RDC Residents Development Committee

SADC Southern Africa Development Community

SIDA Swedish International Development Assistance

UNIP United National Independence Party

WLSA Women in Law in Southern Africa

YWCA Young Women’s Christian Association

ZAW Zambia Alliance of Women

ZCEA Zambia Civic Education Association

ZLA Zambia Land Alliance

ZNBS Zambia National Building Society

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TABLE OF CONTENTS

FOREWARD iii

EXECUTIVE SUMMARY 1

SOUTHERN AFRICA 1

Southern Africa Regional Overview 51. Introduction 5

2 Legal systems of the region 7

3 International law 8

4 Land reform in the region 8

5 Land and housing movements in the region 11

6 Slums and informal settlements 12

7 Tenure types and systems 14

8 Land management systems 15

9 Women’s rights to land and housing in the region 17

9.1 Constitutional provisions 17

9.2 Marital property rights 18

9.3 Inheritance rights 20

9.4 Affirmative action policies 22

9.5 Best legislation, policies and practices on gender issues 23

10 Racial and ethnic equality 23

11 Regional recommendations and priorities 24

Land law reform in Zambia 27Introduction 27

1 Background 29

1.1 Historical background 29

1.2 Legal system and governance structure 31

1.3 Socioeconomic context 36

1.4 Civil society 37

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2. Land Tenure 40

2.1 Relevant constitutional provisions 40

2.2 National laws related to land and property rights 41

2.3 Customary law 42

2.4 Land policy 43

2.5 Tenure types 45

2.6 Main institutions involved 48

3 Housing 50


3.2 Policies related to housing 52

3.3 Relevant housing legislation 52

3.4 Tenure types 53

3.5 Main institutions 53

4. Inheritance and Marital Property Legislation 54


4.2 Legislation related to inheritance rights 56

4.3 Legislation related to marital property rights 59

4.4 Customary law 60

4.5 Administration of estates (inheritance procedures) 61

5. Poverty Reduction Strategy 62

6. Land Management Systems 63

6.1 Introduction 63

6.2 Informal settlements and the formal system 66

6.3 Dispute settlement mechanisms 70

7. Local Laws and Policies 72

8 Implementation of Land and Housing Rights 72

8.1 Inadequacy of housing 73

8.2 Absence of affordable finance 73

8.3 Access to land 73

8.4 Security of tenure and evictions 74

8.5 Property grabbing 75

9 Best Practices 76

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10 Conclusion 77

11 Recommendations 78

11.1 Law and policy reform 78

11.2 Governance 80

11.3 Capacity building 80

11.4 Land management 80

11.5 Coordination 80

11.6 Implementation 80

11.7 Simplify procedures 81

11.8 HIV/AIDS 81

REFERENCES 83

APPENDIX 91

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EXECUTIVE SUMMARY

Southern Africa

This report was commissioned by UN-Habitat to review the laws and land tenure of a selected number of southern African countries. It involved the appointment of country specialists who researched and produced country chapters for their respective countries namely, Lesotho, Mozambique, Namibia and Zambia. A regional expert was appointed to produce a regional overview to serve as a source document for the country reports, as well as provide overall coordina-tion of the project. The project was carried out over a period of roughly one year, which began in March 2004.

The economic, social and political diversity of the region pre-cludes one from reaching sweeping conclusions. Nevertheless it is possible to recognise a number of common themes. The

conditions prevailing in the region. Among the worst poverty levels in the world as well as high HIV/AIDS infection rates need to inform any reform initiatives, and infuse a sense

recommendations. This also means that all reforms should have poverty alleviation as their foremost priority, followed closely by a concern with the interests of vulnerable groups

-erty and HIV/AIDS have the greatest impact on women, all initiatives must prioritise the importance of women’s rights

challenges.

for constitutional review in a number of the countries. The degree of reform required varies depending on the country,

is a widespread need to enshrine and strengthen the right to adequate housing. With this right come related aspects of service provision as well as the prevention of unlawful evic-

tions. Secondly, constitutional reform that eradicates against women is essential. While all the constitutions within the region appear to prohibit overt discrimination on the basis of gender, many allow for such discrimination where customary law is applicable and where customary law permits it.

Across the region a number of other areas of law also have

land laws, which have to be reviewed and revised to provide

rights for the poor. This includes the recognition of existing tenure arrangements through simple, cheap, informal and incremental systems. Another important area of legal reform recommended is changing laws that deal with marital and

of these laws however discriminate against women in the acquisition, control and inheritance of land and housing. Laws that discriminate against women on issues of marital property and inheritance rights should therefore be repealed. This means that both men and women should have equal rights over marital property during and after the marriage or death of a spouse, irrespective of how they are married. A third priority area for law reform is the need to review high planning and building standards to facilitate provision of

needed in most countries of the region to regulate better the relationship between landlords and tenants, with a view to promoting rental as a secure and useful form of land tenure for those people who require it.

Legal reform is successful only within a supportive frame-

capacitated and functioning local government with a clearly

second is judicial reform. It is recommended that dispute resolution mechanisms on issues dealing with land are made simpler, easier to access and more recognizable to people at local level. Civil society is an important driver of legal

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reform. Support for strong civil society organisations with an urban land focus is therefore recommended. Many recent reform initiatives have stalled, and a vigilant and active civil society is important to sustain the reform drive. The role of traditional leadership in land reform also cannot be over-

resolution. Traditional leadership should be incorporated more into reform initiatives and traditional leadership’s deci-

responsibility among institutions involved in implementing and administering land and housing programmes.

Capacity building is a recurring theme upon which many recommendations are based. There are many structures that need to be capacitated to ensure the success of these reform

Local government, departments directly dealing with land matters and the judiciary all need larger budgetary allocations as well as more and better-trained staff. In recognition of the reality of limited government ability to provide for this, it is recommended that cheaper and more innovative ways are found to increase capacity. This includes partnerships with the private sector, the use of trained technicians rather than

collection and spending. Capacity also has to be built in com-munity structures and NGO’s. Civil society in most of these countries is not active and requires support.

collection and data management are established. It is also strongly recommended that data in future be disaggregated according to gender. This serves as a useful tool to measure the success of the reform initiatives in altering gender biases and to inform ongoing law and policy review. Related to data

collection is the need for further research. One particular recommendation in this respect stands out. The effects of

particular, more vulnerable to dispossession. This is an area requiring more and detailed research so that appropriate and

-form is attitudes. Many recommendations that emerge from the reports are aimed at defeating long held patriarchal at-titudes in society. These attitudes impede the equal treatment of women at virtually all levels of society, in households, communities and government. Many recommendations

departments dealing with land are singled out. Traditional leadership structures should also be expanded to incorporate women and other marginalized groups. Additionally educa-tion and awareness is recommended as a way of gaining ac-ceptance for reform from the public. It is however generally

long and sustained efforts.

laws and policies across Southern Africa. Laws that deal with land in general are being re-examined and more progressive

report is there is need to sustain the momentum of these reform initiatives, and in many instances to expedite them to achieve lasting results.

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Figure 1.1 Map of Southern Africa

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Southern Africa Regional Overview

1 Introduction

This overview introduces four separately published reports covering law and land tenure in Lesotho, Mozambique, Namibia and Zambia. It provides an overview of trends and issues emerging in the Southern African region. Almost all the countries in the region are engaged in processes of land law reform. 1 Although the focus of much of this law reform is the region’s rural land, there are also many exam-ples of new laws being formulated and discussed that deal

region is that boundaries between urban and rural tend to be indistinct. This, together with a widespread tendency to

“import” customary laws and practices from the rural areas to the towns and cities, means that it is not always helpful to distinguish too sharply between urban and rural land laws. It is also interesting to note that while every country in the region has a land ministry, their primary concern is rural land. Urban land is dealt with as a secondary concern of ministries of local government and planning. To date, no country in

which to manage the urbanisation process.

All countries in the region face the considerable challenge of capacity shortfalls. Not only do the various government

-

to either train or hire new recruits, or to procure professional services from the private sector.

Southern African governments receive, or have received, donor support for their land law reform processes. Obviously, the overriding rationale for donor support for land law re-

of poverty alleviation, donor support for land law reform

is a concern with the often unequal effects of land law on women, but also on certain ethnic and racial groups. Second, 1 For an overview, see SARPN (2003). Seeking Ways out of the Impasse on Land Reform in Southern Africa. Notes from an Informal “Think-tank: Meeting”.

and perhaps more importantly, there is a widely held belief

more individualised and more secure land rights in order to promote investment in the region’s economies. This second concern inevitably adds weight to those voices advocating the increased privatisation of land rights in Southern Africa.

region include:

Poverty: the region includes some of the poorest countries in the world. Low levels of economic activity,

-forts to address land reform, and increase dependence on international donors;

Wealth gap: high levels of income inequality prevail across the region. Countries such as Namibia and South Africa are among the most unequal countries in the world;

HIV-AIDS: the global epidemic has hit Southern Af-rica the hardest of any region in the world. While con-siderable research has been done in some countries on the epidemic’s impact on rural land holding patterns 2

there has been very little equivalent research done in the urban areas;

Gender division: although it is unwise to oversimplify this point, access to land rights is largely determined by gender, with women’s land rights often being second-ary rights, in that they are derived from land rights held by their husbands or other male relatives; 3 and

Colonial history: all the countries in the region suffered under various forms of colonisation from the mid-17th

century through to the second half of the 20th century.

this impact varies from country to country. Each coun-

and unequal land allocations in different ways, inevi-tably involving some form of redistribution of land

2 This research highlights especially the way in which women’s land rights arenegatively affected by the phenomenon of HIV-AIDS. See, Strickland, R. (2004). To haveand to hold: women’s property and inheritance rights in the context of HIV-AIDS in Sub-Saharan Africa. ICRW Working Paper.

3 Walker, C. (2002). Land Reform in Southern and Eastern Africa: Key Issues forStrengthening Women’s Access to and Rights in Land. Report on a desktop studycommissioned by the FAO.

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Table 1.1 Social development indicators Southern Africa 4

Country(with total pop.)

Access to services(% of total pop.) 2000

Age group as a percentage of total pop. (2002)

Poverty Incomedistr. (share of income held by groups)1989-2000)

Urban-isation HIV/Aidsestimates (end 2001)

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Angola(13 million) 38 44 50 52.7 3.1 n/a 2,053 n/a n/a 5.3 35.5 5.5 100,000

Botswana(2 million) 95 66 41.3 55.3 2.3 23 8,244 70.3 2.2 4.2 49.9 38.8 69,000

Lesotho(2 million) 78 21 46.2 65.7 5.0 43 2,272 70.7 1.4 5.3 31.3 31.0 73,000

Malawi(11 million) 57 76 44.6 51.8 3.5 42 586 56.1 4.9 4.5 29.5 15.0 470,000

Mozambique(18 million) 57 43 42.4 53.6 3.6 38 n/a 46.5 6.5 6.6 34.3 13.0 420,000

Namibia(2 million) 77 41 38.1 49.6 3.4 35 6,410 78.7 1.4 3.9 31.9 22.5 47,000

South Africa(45 million) 86 87 30.7 60.4 4.3 7 10,132 66.5 2.0 3.4 58.4 20.1 660,000

Swaziland(1 million) N/a N/a 41.8 54.5 2.8 n/a 4,503 64.4 2.7 4.2 27.0 33.4 35,000

Zambia(10 million) 64 78 45.6 53.7 2.3 64 806 56.5 3.3 2.7 40.1 21.5 570,000

Zimbabwe(13 million) 83 62 43.4 52.1 3.1 n/a n/a 55.7 4.6 4.3 36.7 33.7 780,000

4 World Bank. (2004). African Development Indicators.

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2 Legal systems of the region

In addition to the continuing application of African custom-ary law, which is a feature of all countries in the region, there are three main settler legal systems in Southern Africa: Roman-Dutch law 5

Swaziland and Zimbabwe); Portuguese colonial law (Angola and Mozambique); and English law (Malawi and Zambia). In general, the form of the settler legal system does not seem to

some differences in approach, however, that may be attribut-able to underlying legal systemic differences, particularly in relation to marital property and inheritance issues.

Table 2 1Main settler legal systems

Settler legal system Southern African countries

Roman-Dutch BotswanaLesothoNamibiaSouth AfricaSwazilandZimbabwe

Portuguese AngolaMozambique

English MalawiZambia

and Angola is a so-called civilian system. The main differ-ence between common-law and civilian systems is that, in

interpretation of the civil code as applied to the facts of the

of past judicial decisions, and consequently the role of the courts in the development of land and housing rights.

dominant position of ownership in Roman-Dutch common law, in comparison to English and Portuguese land law, where freehold is less hegemonic. In Mozambique, the socialist- 5 Roman-Dutch law was introduced to Southern Africa by Dutch colonisers in the 17thcentury and has remained the basis for a number of legal systems in the region.

in Portuguese colonial law, which also favoured state land

English land law may have bolstered the post-independence preference for leasehold over freehold tenure, although that

Mozambique and Angola, also carried out within a socialist

Thirdly, the rule in Roman-Dutch law (in terms of which anything permanently attached to land is regarded as part of the land 6

Lesotho, Namibia, South Africa and Zimbabwe the distinc-tion between land and housing rights is one of emphasis rather than law. In the absence of a purpose-designed statute, such as the Sectional Titles Act in South Africa, 7 it is not legally possible in these countries to separate rights to a structure from rights to the land on which the structure is built (which is not to say that separate rights to land and structures do not feature in extra-legal land allocation practices 8). Generally

policy is equated with rural land reform in the countries where Roman-Dutch legal tradition holds sway, whereas housing policyWithin these separate policy domains, the term “land rights” is used to emphasise the preoccupation of rural land reform with land as a productive asset, and the term “housing rights” to connote the right to shelter and tenure security.

determinant of the approach to land and housing policy

-plication of colonial law have more to do with the nature of Portugal’s withdrawal from that country, and the ensuing civil war, than with the character of the received legal system.

6 See van der Merwe, C. G. (1987). The Law of Things. para 144 (in relation to

acquisition of ownership known to Roman-Dutch and modern South African law as

7 Act 95 of 1986.

8 Royston, L. (2002). Security of Urban Tenure in South Africa: Overview of Policy andPractice. in A Durand-Lasserve and L Royston (eds). Holding Their Ground: Secure LandTenure for the Urban Poor in Developing Countries. pp. 165-81.

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Post-independence land speculation was the immediate rea-son for Zambia’s turn to state land ownership.

Although each of the different legal traditions inherited in the Southern African region had a different name for it, they nevertheless all provided for some form of transferring land rights to an unlawful occupier of that land, for a prescribed period of time, where the lawful occupier had neglected his or her land. Variously called adverse possession, prescription or usucapião in the different countries of Southern Africa, the common-law roots of this doctrine have almost all been translated into new statutes that spell out the criteria for obtaining land rights in this way. 9 Any differences in the common-law approach to this question have therefore been rendered irrelevant. 10

All countries in Southern Africa have dual legal systems in the sense that both customary law and inherited colonial common law are applicable (in addition to pre- and post-independence statute law). The exact time of reception of colonial common law differs from country to country.

1891, 11

12 The time of recep-tion of colonial common law is obviously less important than the date of independence, for it is the latter that determines the degree to which the independence government has had the opportunity either to abolish or harmonise the dual legal system.

9 See, for example, Art. 12(b) of the 1997 Mozambique Land Law and section 3(4) and(5) of the Extension of Security of Tenure Act 62 of 1997 (South Africa).

10 In practice the prescribed time periods for this form of land acquisition can varywidely, from 10 years in Mozambique to 30 years in South Africa.

11 McAuslan, P. (2004). Tensions of Modernity. Paper presented at the University ofReading Centre for Property Law IVth Biennial Conference, p. 6.

12 Selebalo, Q. C. Land Reform and Poverty Alleviation: Lesotho’s experiences duringthe last two decades. Paper presented at the SARPN Conference on Land Reform andPoverty Alleviation in Southern Africa, p. 2.

3 International law

Most countries in the region are party to the main interna-tional and regional human rights instruments. In the appen-dix the most relevant international human rights conventions are listed and an overview is provided of which countries are party to which instruments.

4 Land reform in the region

One of the main distinctions relevant to land reform in Southern Africa is between those countries that had sub-stantial settler populations and those that did not. South

populations, holding large areas of land, especially agri-cultural land. 13 In comparison, the majority of the settler populations of Mozambique, Angola, Zambia and Malawi left those countries shortly after independence. Within this group of countries there is a further distinction between, on the one hand, Mozambique and Angola, where the in-dependence governments were not hampered by the duty to compensate departing settler landowners, and, on the other hand, Malawi and Zambia, where initial land reform efforts were constrained by the duty to compensate. The third main

much of this land was repurchased by the Swazi people dur-ing the last century. 14

13 In Zimbabwe, until very recently, roughly 50 percent of all agricultural land was inthe hands of a few thousand white farmers. In South Africa, 87 percent of the land surfacewas under settler control. The amount of land currently owned by the white minority groupis unknown, but the basic landholding pattern has not changed greatly since the transitionto democracy in 1994. In South Africa, by the end of 2000, six years after the transition todemocracy, less than 2 percent of agricultural land had been redistributed. See Sibanda,S. (2001). Land Reform and Poverty Alleviation in South Africa. Paper presented at theSARPN Conference on Land Reform and Poverty Alleviation in Southern Africa, Pretoria.(4-5 June 2001).

14 The Swazi Land Proclamation Act, 1907 reserved 37.6 percent of the land for

land repurchase programme commenced in 1913, and has been resumed at variousintervals. By 1991 one third of the land targeted for repurchase had been acquired. SeeAlfred Mndzebele ‘A Presentation on Land Issues and Land Reform in Swaziland’ paper

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question in the immediate aftermath of independence has tended to be dominated by rural land reform, especially land

resources, such as Namibia and Zimbabwe, this has resulted in prioritisation of laws that aim to redistribute commercial farmland over laws aimed at urban tenure reform. Thus, in Namibia, the Agricultural (Commercial) Land Reform Act, 1995, which provides for redistribution of commercial farm

-tive, low-cost tenure forms for the urban poor, has yet to

absence of a political champion in government.

The second important effect of the distinction between “set-

of land ownership as the preferred form of land tenure in the former group, where land ownership was invariably the exclusive preserve of the settler minority. In South Africa,

been made available in urban housing programmes, which

Zambia, the departure of the settler population freed the independence government’s hand to abolish private land ownership. Without ownership as a dominant tenure form it was possible to experiment with alternative forms of tenure in the urban setting. 15

-

between the size and permanence of the settler population, and the urbanisation rate, is harder to isolate from other

high rates of urbanisation to its industrial centres, follow-

mid-1980s. Yet in Mozambique, where the settler population departed en masse in 1975, the annual percentage urban

presented at the SARPN conference on Land Reform and Poverty Alleviation in SouthernAfrica (June 2001).

(Statutory and Improvement Areas) Act [Cap 194] in Chapter 5.

growth rate is the second highest in Africa, at 6.6 percent. Indeed, apart from Zambia, all of the countries in the region register urban growth in excess of 3 percent. 16 In none of them is this process particularly well understood.

The table below compares the degree of urbanisation pre-vailing in each of the region’s countries. 17

that only one country in the region has more than 50 percent of its population currently living in urban areas.

Table 4.1 Urbanisation prevailing in Southern African coun-

tries

Country Total population(millions)

Urban population as % of total

Angola 13.1 35.5

Botswana 1.7 49.9

Lesotho 1.8 29.5

Malawi 10.7 15.5

Mozambique 18.4 34.3

Namibia 2.0 31.9

South Africa 45.3 58.4

Swaziland 1.1 27.0

Zambia 10.2 40.1

Zimbabwe 13.0 36.7

Southern Africa 117.3 42.8

Sub-Saharan Africa 688.9 33.1

The dual legal systems found in all the countries in the region recognise, to a greater or lesser degree, customary laws, which are inherently patriarchal. In some of the countries, such as South Africa and Namibia, the independence constitution

over rights to culture. 18 In others, such as Lesotho, patriar-

16 Op. cit.,4.

17 World Bank. (2004). Little Green Data Book.

18 See section 9 (equality) read with section 30 (language and culture) of the 1996South African Constitution. Section 30 reads: “Everyone has the right to … participate in

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chal forms of land holding are constitutionally entrenched. 19

The constitutional position in a country obviously affects the degree to which land reform and urban tenure laws can address gender discrimination. In Namibia and South Africa, new laws applicable to areas under customary law guarantee minimum representation for women on district level land management bodies. 20 And in Zambia the national gender policy mandates that 30 percent of all land parcels allocated in urban areas are to be set aside for women. In Lesotho, by contrast, the Deeds Registries Act, 1997 “empowers the Registrar to refuse to register a deed in respect of immovable property in favour of a married woman whose rights are gov-

21

The table below sets out the way in which land is broadly categorised in the region as state-owned ‘trust’ land, privately owned rural land or state-owned public purpose land (includ-ing urban development).

the cultural life of their choice, but no one exercising these rights may do so in a mannerinconsistent with any provision of the Bill of Rights”.

19 See section 17(4)(c) of the Lesotho Independence Order, 1966 (exemptingcustomary law from the constitutional prohibition against discrimination).

20 See the Namibian Communal Land Reform Act, 2002 and the South AfricanCommunal Land Rights Act, 2004.

21 Selebalo, Q. C. (2001). Land Reform and Poverty Alleviation: Lesotho’s experiencesduring the last two decades. Paper presented at the SARPN Conference on Land Reformand Poverty Alleviation in Southern Africa, June 2001 p. 7.

Table 4.2 Patterns of land distribution in Southern Africa 22

Country State-owned ‘trust’ and/or customarytenure

Privatelyownedrural land

State-owned public purpose (including all urban) land

Namibia 43% 39% 18%

South Africa 14% 67,5%18,5%(8,5% urban)

Zimbabwe51%(trust 42%; resettlement 9%1)

30%19%

Botswana 71% 6% 23%Lesotho 95%2 5% -

Malawi 67% 11%22%(3% urban)

Mozambique 100%3 - -

Swaziland +/- 56% 25%(approx.)

19%(approx.)

Zambia Predominant4 - -

22 Op. cit., 3.

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5 Land and housing movements in the region

The position of nongovernmental organisations (NGOs) in the land sector varies considerably from country to country. The strongest NGOs tend to be more active in the rural areas than in the towns and cities, with notable exceptions being the Namibian Housing Action Group and the Homeless

region have strong ties to international NGOs and donors, with Oxfam, Ibis, the UK government’s Department for

-ment agency GTZ being particularly prominent.

In Angola and Mozambique, the NGO sector has been ravaged by decades of civil war, but has recently emerged as a strong force. The participation by civil society in the drafting of the 1997 Mozambican Land Law is perhaps the

23 Rede Terra)was formed in 2002 and is attracting donor support, al-

24

Namibia provides a possible good practice example in the partnership formed between the national government, the

land tenure. The Zambia Land Alliance is a coalition of civil society organisations that has been strongly critical of the policy process leading up to the adoption of the land policy in that country. 25 Pursuant to these criticisms, the alliance was invited to partner the government in coordinating civil society contributions to the policy process. It is yet to be seen to what extent the views gathered by the group will change the published draft policy.

23 Conceição de Quadros, M. (2002). Country Case Study: Mozambique. Paperpresented at the Workshop on Integrating Land Issues into Poverty Reduction Strategiesand the Broader Development Agenda, Kampala, April 2002. Tanner, C. (2002). Law-making in an African Context: the 1997 Mozambican Land Law. FAO Legal PapersOnline #26, March 2002.

24 Op. cit.,1.

25 Zambia Land Alliance. (2002). Initial Position Paper on the Draft Land Policy.Paper presented to the Zambian Government Land Policy Technical Committee LusakaProvince Workshop, December 2002.

There is only one regional NGO operating in the land sec-tor: Women and Law in Southern Africa (WLSA). It is active

-sations and individuals concerned with land policy, which

-

between NGOs in the region (the Southern Africa Regional 26

Figure 5.1 NGO participation in policy-making

Weak NGO participation in policy-making

Weak

NGO

s

MalawiBotswanaSouth AfricaLesotho

AngolaSwazilandZambiaZimbabwe

Strong NGOs

MozambiqueNamibia

Strong NGO participation in policy-making

Women’s movements

Many women’s coalitions in the region are loose alliances

Widows and Orphans Project in Zambia. In Swaziland wom-

for recognition of women and children’s rights. Professional organisations have also been instrumental in advancing women and children’s rights through research, advocacy and litigation. Many women’s organisations have been involved

26 For more information on this initiative Lelanie Swart at DFID Pretoria can becontacted on +27 12 431 2100. An important regional source of land-related informationis the website of the Southern Africa Regional Poverty Network – www.sarpn.org.za.

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Although some coalitions are formalised and survive beyond 27 many disintegrate after they meet their

objectives, or after the initiative for which they were formed fails to yield results. They also often face political and social resistance. Many women’s movements in the region have also not been as forceful or organised around land and housing rights as they have been on other issues. 28

6 Slums and informal sett lements

As noted earlier, all countries in the region are experiencing relatively rapid urbanisation, with mostly inappropriate or non-existent policy responses. None of the countries actively resists the growth of informal settlements. However, the

migrants prevent effective management of this issue.

At a regional level, there is no clear trend towards regularisation of informal settlements. The Zambian Housing (Statutory and Improvement Areas) Act represents perhaps the most

for regularisation. In South Africa, regularisation has largely been ignored in favour of mass-produced, subsidised hous-ing. 29 After nearly 10 years of implementing this approach, the South African housing minister announced a major new housing policy direction in September 2004, which supports

“in situ upgrading in desired locations”. However, it remains

27 A good example is Zambia’s umbrella Non-Governmental OrganisationsCoordinating Council (NGOCC), which is recognised by government and is representedon leading government and quasi- governmental institutions such as the Law ReformCommission. It submits regular reports and recommendations to parliamentary selectcommittees on issues affecting women and children, and mounts media and advocacycampaigns. Similarly, in Mozambique, the Women’s Coalition survived the end of theFamily Law initiative.

28 Such as the increase of women in decision-making positions and on violenceagainst women.

29 See Huchzermeyer, M. (2004). Unlawful Occupation: Informal Settlements andUrban Policy in South Africa and Brazil. cap. 6. It is however important to note that asearly as 1995 the new South African government enacted legal provisions for upgrading,in the Development Facilitation Act, but these provisions have not yet been used.

to be seen how this will be translated into practice. 30 In Namibia some regularisation has occurred in the absence of

31

Throughout the region there is a blurred distinction between urban and rural land, both on the edges of towns and cities as well as in dense settlements in rural areas, the latter often resulting from land redistribution projects (Namibia, South Africa and Zimbabwe). A second reason for the blurred urban-rural distinction is the continuing importance of customary law in land allocation practices on the urban periphery. In

process of allocating tribal land for urban use and develop-ment”. 32

and the land development procedures laid down in the Town and Country Planning Act. 33 -ary and modern law is explored in detail in each of the four reports.

In countries with extensive private land holdings, the primary problem facing informal settlement dwellers is the illegality of their occupation. In contrast, state ownership of land, e.g. in Mozambique and Zambia, means that there is less legal op-position to informal settlements. Regardless of the underlying legality of a household’s occupation of land, the absence of basic service provision is a common and persistent problem across the region.

There are some good examples of informal settlement organisations developing and implementing innovative prac-tices to secure the tenure and improve the conditions of their

30 See Press Statement by LN Sisulu, Minister of Housing, on the Public Unveilingof the New Housing Plan, September 2 2004, available at www.housing.gov.za.. As the

settlement upgrading, the new programme is instituted in terms of section 3(4) (g) of theHousing Act, 1997, and will be referred to as the National Housing Programme: In SituUpgrading of Informal Settlements. Assistance takes the form of grants to municipalitiesto enable them to respond rapidly to informal settlement upgrading needs by means ofthe provision of land, municipal services infrastructure and social amenities. It includesthe possible relocation and resettlement of people on a voluntary and cooperative basis,where appropriate.

31 See also World Bank (2002). Upgrading of Low Income Settlements CountryAssessment Report: Namibia. (Reporting on informal settlement upgrading in Windhoekon the basis of City Council Guidelines).

32 Op. cit, 11.

33 Ibid.

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-veys of informal settlements.

Women in slums and informal settlements

indicates that in most of Southern Africa, the poorest of the

has largely been due to their limited access to resources. 34

Scarcity of jobs especially for women and inadequate wages to purchase housing means that women have little chance to own decent housing. Other problems such as poverty, il-literacy, violence, high costs in freehold and leasehold titled land, HIV/AIDS and unfair inheritance and divorce laws, also tend to force women into slums and informal residential

-ing adolescent women in slums 35.

34 Op. cit.,49.

35 Caldwell, J. & Caldwell, P. (undated). Fertility Transition in Sub-Saharan Africa, seewww.hsrcpublishers.co.za

Women are also often excluded in land or housing alloca-tion. Expulsion of women from marital homes (sometimes without divorce) also often forces women into poor hous-ing areas. In some countries retaining marital power of the

immovable assets in married women’s names. As in formal settlements, the man is still the owner of the house except in women-headed households. 36

women. A good example of the exception to this rule is Namibia, which did not initially target women as potential

deliberate effort to include women in the National Housing Strategy.

36 Keller, B. Phiri, E. and Milimo, M. (1990). Women and Agricultural Development.in Wood, A. P. et al (eds). The Dynamics of Agricultural Policy and Reform in Zambia.pp. 241-262.

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Table 6.1 Land distribution and upgrading projects in Southern Africa

Country Scheme Objective Services Women

Angola Self-finance urban infrastructure

Shelter for internally displaced urban migrants

2,210 houses for 16,702 people; 12 km of power lines; 70 km of clean water; 23 km of drainages; 29,000 km paved road

No statistics

Lesotho Urban upgrading Project

Improving living conditions for slum dwellers and providing housing units

Housing for 267 families 134 female headed households

Namibia Nations Shelter Strategy National Housing Policy 3,400 housing units with additional 1,300 families per year

No statistics available but there is a deliberate effort to include women

South Africa Alexandra Renewal Project, etc.

Generally increasing housing units

1 million low-cost housing units in six years No statistics available

(Source: www.grida.no/aeo/214.htm accessed December 30 2004)

7 Tenure types and systems

The vast majority of land in the region is still held under customary tenure, mainly in the rural areas, although the propor-

for the amount of land held under different tenure forms are not available. In Zambia, where 94 percent of the land is -

sion to leasehold tenure under the Lands Act, 1995, gathers momentum. 37 A similar process of conversion is underway in Mozambique. In all countries in the region attitudes towards land tenure are undergoing a dynamic process of evolution. In

“modern” tenure laws either inherited from the colonial powers or enacted since independence.

As noted earlier, in countries where the Roman-Dutch legal system applies, ownership tends to be the dominant form of

South Africa, the Communal Property Association Act, 1995, which was originally designed as a vehicle for rural land reform, has been used in the so-called Peoples’ Housing Process, which is the “self-help” part of the government’s urban housing programme. There has also been considerable donor support for cooperative housing in South Africa, although many of the

or primary occupant of a plot or structure and tenants, or sub-tenants, renting a part of the main property. This phenomenon is especially evident in Lesotho where a large number of residents of Maseru, the capital, live in malaene homes, which are rooms specially constructed by private individuals in a row formation and then rented out on an individual basis.

to 1964 and the Zambia (Trust Land) Orders, 1947 to 1964. This formulation effectively freezes the proportion of land held under customary tenure in Zambia at the colonial level,notwithstanding the fact that the Lands Act provides for the conversion of customary tenure into leasehold.

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The exception to the dominance of ownership in Roman-Dutch-law countries is Zimbabwe, where the government recently announced its intention to convert all freehold titles into 99-year leaseholds. 38 If implemented, this policy will shift the land tenure system in that country closer to that of its northern neighbour, Zambia.

of group ownership of surveyed urban land with individual rights in unsurveyed plots, subject to conditions laid down in the constitution of the group (“starter title”); and individual rights to measured (but not formally surveyed) plots in a

Improvement Areas) Act. What these two pieces of legisla-tion have in common is a shared commitment to informal settlement regularisation through the creation of local level registries, in which people are able to acquire rights in infor-

plots. The intention in both cases is to provide an adequate level of tenure security, capable of supporting municipal in-frastructure investment, without incurring the costs of formal surveying. In Zambia, where the local level registry system has been in operation since the mid-1970s, the system has largely succeeded in providing security of tenure to residents

for improved housing. The installation of basic services has also been hampered by overly ambitious and costly service standards, which have proved impossible to maintain. 39

Article 12 of the 1997 Mozambican Land Law provides an interesting example of how tenure security can be provided by statute without the need for surveying. There is some evi-dence to suggest that the provision in this article for acquisi-tion of land after 10 years’ occupation in good faith provides an effective form of security of tenure for the residents of

38 The Herald, Harare, June 8 2004.

39 In addition to the similarities between the Zambian and Namibian experiences oflocal registries there are also some important differences. For example, in Zambia, thereis no possibility of upgrading a registered right from the local registry to the “mainstream”registry, whereas in Namibia this is possible.

informal settlements. However, the continued uncertainty over the application of the Land Law in urban areas, and the delay in adopting the Urban Land Regulations, may progres-sively undermine this position. It is also doubtful whether the device used in Art. 12 of the Land Law can be replicated in other countries where land on the urban periphery is in pri-vate ownership. In South Africa, for example, the Prevention of Illegal Eviction from and Unlawful Occupation of Land

-tection against arbitrary eviction and enforcing the rights of private owners to evict people who illegally occupy their land. In Zambia, the recent eviction of people from land owned by the Catholic Church 40 indicates the limitations of that country’s Housing (Statutory and Improvement Areas) Act in protecting people whose occupation of land has yet to be legalised. 41

8 Land management systems

between formal and informal land management systems. Even in South Africa, where most of the land surface is sur-veyed and mapped, the land management system applicable in the former “homeland” areas is in a chaotic state, with existing documentation either outdated or destroyed. The Communal Land Rights Act, 2004, was in part enacted to remedy this situation.

In respect of land falling under customary law, one of the more contentious issues has been the attempt to subject land

provides an early and thus far successful example of this phenomenon, with the land boards in that country playing a legitimate and accepted role, not only in tribal land man-

behalf of the Catholic Church demolished 600 houses in an illegal settlement in Lusaka’sNg’ombe residential area. The squatters, who had been resisting eviction over the sixmonths prior to this date, were taken by surprise by police, who razed their structureswithout removing household goods. Police beat and apprehended about 10 of thesquatters who blocked the road leading to the disputed land to protest the destruction oftheir homes (see Zambia report).

41 Section 9 of the Land Act, 1995 provides that “[a] person shall not without lawfulauthority occupy or continue to occupy vacant land”. Thus, where land is not declaredas an improvement area under the Housing (Statutory and Improvement Areas) Act,residents of informal settlements are vulnerable to eviction.

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agement, but also increasingly in the allocation of land on the urban periphery. 42

--

agement functions of traditional councils, some of which were created by the apartheid state. 43 In Mozambique and Zambia there has been no attempt thus far to “democratise” customary land management systems. Rather, legislation in both these countries provides for the conversion of custom-ary tenure to leasehold tenure.

Lesotho represents perhaps the most complete form of interdependence of customary and formal rules in relation to urban land management. The primary evidence of secure tenure that is accepted by the courts as a basis upon which

One of the more innovative developments in the region has been the decision to create local level registries in Namibia and Zambia, independent of but connected to the formal deeds registry. This has allowed simpler, more appropriate and less costly forms of land administration to develop, ca-tering to the needs of the urban poor.

Across the region, the tensions inherent in trying to man-age comprehensive, up-to-date, responsive and accessible registries of private land rights, cadastral surveys and public land inventories within a context of limited capacity and highly constrained resources are enormous. These tensions play themselves out in different ways but are most frequently

that cost their respective governments a great deal more than -

novative solutions to this problem are arising, from both the

42 Op. cit.,11.

43 For criticisms of this Act, Cousins, B. & Claassens, A. (2004). Communal LandRights, Democracy and Traditional Leaders in Post-apartheid South Africa. in Saruchera,M. (ed) Securing Land and Resources Rights in Africa: Pan African Perspectives. pp.139-54; Cousins, B. (2004). The Communal Land Rights Act: Likely to Face ConstitutionalChallenge. Umhlaba Wethu No. 1, August 2004; Cousins, B. (2004). The ContinuingControversy Over the Communal Land Rights Bill of 2002. ESR Review, Vol. 5 No. 4.

formal and informal sectors, but these innovations have not yet been tested at scale.

A further challenge to effective land management is the question of building standards. Primarily as a result of the region’s colonial legacy most countries have one set of building standards applicable to the urban areas previously reserved for settler occupation and a different set applicable to other areas. South Africa, Namibia and Zimbabwe are all examples of this phenomenon. In other cases the authori-ties have simply never been able or willing to apply building standards to the more marginal urban areas, as has been the case in Mozambique. Across the region however there is a growing realisation that lower building standards inevitably result in higher levels of access to land and housing for the

This has resulted in various policy initiatives, particularly in Zambia and Namibia, to revise building standards to a more realistic level.

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9 Women’s rights to land and housing in the region

9.1 Constitutional provisions

The table below shows the position of non-discriminatory clauses in the constitutions of Southern African countries.

Table 9.1 Constitutions and non-discriminatory clauses in Southern Africa

Country Right to equality Discrimination on basis of sex prohibited

Right to land, housing or property recognised

Angola Yes, Art. 18 Yes, Art. 18 No

BotswanaNo. While Art. 15 recognisesequality, customary law is allowed to compromise the right to equality

No. Art. 15 excludes discrimination on grounds of sex

No, only protection from deprivation of property in Art. 8

Lesotho Yes, Art. 19 Yes, but Art. 18 (b) and (c) allows for discrimination in personal law and customary law

No, only protection from deprivation of property in Art. 17

Malawi Yes, section 20: Yes, Sections 20 and 24 including marital status and gender Yes, Sections 24 and 28

Mozambique Yes, Arts. 66 and 67 Yes Art. 69 Yes, Art. 86 right to ownership of property recognised and guaranteed

Namibia

Yes, Art. 10 (1): “all persons shall be equal before the law” . Art. 14 provides for equal rights to men and women on dissolution of marriage

Yes, Art. 10 (2): “ no person may be discriminated against on grounds of sex, race, colour, ethnic origin, religion, creed, socio-eco status”

Art. 16: “all persons shall have the right to acquire own dispose of all forms of property individually or in association with others …”

South Africa Yes section 9: “everyone is equal before the law…”

Yes, section 9 includes grounds of pregnancy and marital status.

Yes section 26: “everyone has the right to have access to adequate housing”

Swaziland (this is a draft document still under discussion)

Yes sections 15, 21 and 29 have provisions that recognise the right to equality

Yes, in section 21. There is also a section on rights and freedoms of women

No only protection from arbitrary deprivation of property

Zambia Equal worth of men and women recognised.

Yes in Art. 23 which also allows for discrimination in personal law and customary law

No only protection from deprivation of property in Art. 16

Zimbabwe Yes, Art. 9Yes in Art. 23 which also allows for discrimination in personal law and customary law

No, only protection from deprivation of property

rights. This leaves the recognition and enforcement of women’s rights to land, housing and property to the interpreta-tion of the law;

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-struments are self-effecting, most Southern African

-ments but have not domesticated them for local use;

The constitutional provisions relating to equality and non-discrimination can be avoided in some instances.

Lesotho, Swaziland, Zambia and Zimbabwe;

In practice, recognition of women’s rights in the con-stitution does not automatically result in the actual en-joyment of the rights. This is largely due to attitudes. Often, socioeconomic circumstances, for example the war in Angola, interferes with implementation of these laws;

The right to adequate housing is recognized in the South African Constitution but not in the constitu-tions of the other countries and cannot therefore be enforced in court. Equally legislation on housing has

class of people;

-region, is not a common phenomenon due to sociocul-tural factors;

Patriarchal attitudes, where men have always been the heads of homes and documental evidence of owner-ship or occupancy of land and housing has always been given to men, also impede women’s access;

-ties for ownership of land by women is also cited as a problem;

Commercialisation and privatisation of land and hous-ing ownership has compromised access to land by women previously provided under customary land ten-

-cesses are compromising traditional rights of women, for instance in matrilineal societies; 44 and

War in some countries and the prevalence of HIV/AIDS in almost the entire region has disproportion-ately affected women’s land and housing rights.

There have been some government efforts to improve the

44 Women’s Rights to Land and Property, www.unchs.org/csd/documents

reform. However, a great deal more must be done to ensure that women in the region access and enjoy their rights to land, housing and property. Legislative provisions that disadvan-tage women or discriminate against them need to be amended or repealed; the trend where women can only access land and property by virtue of their roles as wives, daughters or sisters has to be reversed as these are mere secondary rights; implementation mechanisms need improvement; sociocul-tural barriers need to be removed; and poverty levels and HIV/AIDS need to be addressed with a gender and rights perspective in mind. Larger and more coordinated efforts need to be made by civil society given that the political will is not always there. Above all attitudes towards women need to change.

9.2 Marital property rights

Marital property rights law is not always clear – a mixture of legislation of the former colonial rulers of each respec-tive country and the local customary rules and practices. Generally, married women are considered to be under the guardianship of their husbands. This means that even when the woman buys the house or property, it is often registered in the name of the husband. 45

Under customary lawsMost women in Southern African are married under custom-ary law. Marital property rights under custom also depend on whether the marriage is matrilineal or patrilineal (which in turn are either matrilocal, where the man moves to the wife’s home, or patrilocal, where it is the wife who moves). The marital property rules under custom are similar to the rules of persons married out of community of property. The property a man comes with into the marriage is to be used

The property the wife comes with is hers as is that which she acquires during the marriage. However, while men will 45 Women and Law in Southern Africa Research and Educational Trust (WLSA).(2001). Critical Analysis of Women’s Access to Land in the WLSA Countries.

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housing, women acquire smaller property and seldom hous-

smaller property but is not entitled to the larger property acquired during the marriage.

especially upon dissolution of marriage and often solely de-pend on the good will of their former husbands. Even where the customary law court has awarded property settlements to women, the High and Supreme courts have upturned such judgments. 46 Many customary laws - for instance Ushi and Chibwe customary law in Zambia - entitle women to a reasonable share of the marital property. 47

In some countries, for instance Swaziland and Lesotho, women are still regarded as legal minors. Husbands have the marital power to administer the joint property and represent

-ried under customary law can actually choose to be exempt from customary rules to an extent that a customary law mar-riage can either be in or out of community of property. 48

However a woman married under customary law is held to be a legal minor and requires her husband’s consent to buy land or enter into contracts. The position of women married under customary law is summed up in the Zimbabwe High Court decision in Khoza Vs Khoza 49 where a woman was deprived of the parties’ communal land and marital home built jointly and maintained by her for 23 years because the marriage was patrilocal.

46 Mwiya Vs Mwiya 1975 ZLR; C Vs C SCZ, 2000 (Zimbabwe).

47 Chibwe Vs Chibwe, Appeal No.38/2000 SCZ (Zambia) This was a marriageunder Ushi customary law and the woman also got a house which had been built bythe husband on a plot that was in her name and a restaurant and an award of $4000for damages arising from the husband’s attempt to defraud her of the house (see SCZAppeal No. 123, 1998)

48 Center On Housing Rights and Evictions (COHRE). (2004). Bringing EqualityHome: Promoting and Protecting the Inheritance Rights of Women. p.42.

49 HH 106 see also WLSA. (1997). Paradigms of Exclusion: Women’s Access toResources in Zimbabwe. p.54-55. The couple had been married for 23 years and the wifehad built and maintained the matrimonial homestead during this time. Upon dissolutionof marriage the court denied her any right to the matrimonial home and residence ongrounds that the marriage was patrilocal. She was awarded the family’s town house inBulawayo yet her means of subsistence was farming. The matrimonial home was oncommunal land.

There are, however, some positive developments. In

things for women by recognising customary law marriages and non-formal unions. Now women married under custom can claim marital property. Although it is a progressive piece

-location of land, as a “set of people living in the same home under the authority of the head of the household, married or in de facto union.” It has been argued that this leaves room for the land to be allocated to the man, who under patriarchy is considered to be the head of the household. 50

Under statuteMost statutory marriages provided can either be in or out of community of property.

and debts of husband and wife are combined into a joint estate. On dissolution of marriage these are divided equally

each party’s debts and assets separate, and on dissolution

People are generally married out of community of property. In some countries, for example Zimbabwe, those who choose to marry in community of property have to sign a special deed to this effect. Marital power is excluded 51, although women still have to be “assisted” in registering property and property transactions. 52 Where marital power is retained over women by men – for example in Swaziland and Lesotho

women. This is because property will often be registered under a husband’s name. Women married out of community of property have to be assisted by their husbands to register property in Swaziland.

50 Women and Law in Southern Africa Research and Educational Trust-Mozambique.(1997)). Families in a Changing Environment in Mozambique, pp. 132-133

51 The Married Persons Property Act of 1929 excludes marital power from marriagesentered into after 1929

52 Section 15 (1) of the Deeds Registry Act, 1996. A Deeds Registry Amendment Bill(2001), which is aimed at removing this, is still pending.

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passage of the Deeds Registry Amendment Act 1996, al-lowed women married in community of property to register immovable property in their names and eliminated the requirement for women to be assisted in registering land. However this amendment only limits marital power over immovable property, so that men still retain it over movable property. Similarly, in Namibia, the Married Persons Equality Act was passed so that women married in community of property can now register property in their own names. In

enactment since 2000.

Joint ownership of marital property

Zambia, for instance, only 12 percent of housing units transferred were held in joint ownership of couples. 53 In Zimbabwe, 98 percent of the resettlement area permits of farming and grazing land are held by husbands and only 2 percent by wives – and women married under customary law cannot hold property jointly with their husbands. On the

In Malawi there is a provision for jointly held property, but not for common property. There seems to be a problem in calculating the women’s contribution to common property because most women’s contribution is in reproductive labour,

9.3 Inheritance rights

Most of Southern Africa has a dual legal system, mean-ing property rights are governed by two systems of law. Consequently the rules of inheritance are derived from both systems.

Under customary lawUnder the customary law system, inheritance is, with a few exceptions, determined by rules of male primogeniture 54.

53 Zambia Daily Mail, July 5 2004, p7

54 The South African Constitutional Court in the case of Bhe V Magistrate, Khayelitshaand others, CCT 49/03 (2005 (1) BCLR 1(CC)) has however ruled against this practice.

This means the oldest son of the senior wife (in cases of polygamy) is the heir. Ultimately the heir is always a male relative, never a female.

Male preference is effected whether under matrilineal or patrilineal principles. So while under matrilineal societies the female line is used to inherit, (most of the region is matrilin-eal) property normally passes to the nearest matrilineal male, usually a nephew of the deceased person and not necessar-ily the sons. In patrilineal societies it goes to the sons. The daughters therefore do not inherit in their own right and can only be assigned land to use by the inheriting male (who may be their cousin, brother or uncle). In most societies, the order of priority is thus always male, with male descendents, ascendants, siblings, collateral males, then only widows and daughters. Women are at the end of the inheritance list and

Patrilocal marriages, where the woman moves to the hus-

expulsion from the matrimonial home. In cases of matrilocal marriage, women inherit their mother’s property, but the heir to a deceased father’s estate is a maternal male. In Islamic communities, for example in Mozambique, daughters are entitled to a quarter of the estate according to Islamic law. This does not always happen however as customary laws distort this practice.

Widows’ inheritance rights are also subject to certain condi-tions. In some cases, they may only inherit if they comply with certain customary rituals. 55 Often, where customary inheritance is controlled by an act, 56 patriarchal attitudes and male preference and dominance in property ownership and inheritance are a problem.

application of customary law in inheritance matters, such as

55 Women and Law in Southern Africa Research and Educational Trust-Swaziland,Inheritance in Swaziland: Law and Practice, 1994, 56-57. In Swaziland, these rituals aretraditional mourning rites, (kuzila) and kungenwa (levirate or widow inheritance).

56 For instance Namibia’s Communal Land Reform Act 2002 read with Art. 66 of theconstitution

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Lesotho, Zambia and Zimbabwe, High Court decisions have ensured the continuation of this practice in spite of the fact that it clearly discriminates against women. 57

In general, women in Southern Africa have a very limited right to inherit; they often only have a secondary right to use the property of the deceased husband or father.

Under statuteThe effect of the inheritance and succession statutes in the region is to vary the provisions under customary law.

In Lesotho, the Draft White Paper on Land does not support the radical abolition of customary law, but the conversion of customary law rights to common law rights. 58 Proposals have been made to the effect that decisions about who should get rights in land including through inheritance would be de-

land. Currently, one is obliged to show that they have moved away from customary law to be able to bequeath property to daughters in a will. However, the Lesotho Land Act of 1997 allows widows to stay in the matrimonial home provided they do not remarry, thereby giving the widow usufruct rights and not ownership rights. Therefore women do not inherit prop-erty but acquire a right to use the property.

is tied to the marriage regime for people married under Civil Law (i.e., in or out of community of property). The

to exclude their wives from the will if the marriage is out

dealing with inheritance is the Administration of Estates Act (as amended by Act No. 6 of 1997). The customary law heir, usually a male, now only receives traditional heirlooms

57 See the Women and Law in Southern Africa Research and Educational Trust-

Magaya Case 1998 SC 210; 1999 1 ZLR 100 (Zimbabwe); Chilala Vs. Milimo LAT 09/99(Zambia); and Tsosane and Tsosane, 1971-73 Lesotho Law Reports 1 (Lesotho).

58 Walker, C. (2003). Land Reform in Southern and Eastern Africa: Key Issues for Strengthening Women’s Access to and Rights in Land. Report to FAO. See also www.oxfam.org.uk

matrimonial home devolves to the surviving spouse. The rest of the estate is shared in equal portions between the surviv-ing spouse and the children of the deceased. The Deceased

superseded by the Administration of Estates Amendment Act, it gives usufruct rights to the widow and children.

In Malawi the distribution of the estate depends on whether the marriage was patrilineal or matrilineal. In patrilineal marriages, half the share goes to the widow, children and dependants and the other half to customary heirs; if it was

59 The personal chattels of the deceased go to the widow, who is also entitled to dwell in the matrimonial house as long as she remains chaste.

Widows in polygamous marriages have to share the property meant for the widow. In Zambia each widow is entitled with her children absolutely (i.e. to the exclusion of other ben-

or room she occupies) and the common property (used by all family members) is to be shared between the widows. 60

Similar provisions exist in the South African Intestate Succession Amendment Act (2002) and the Zimbabwean Administration of Estates Amendment Act 1997. This is dif-

these are sold, sharing is impossible. If the widows continue using this common property, problems of maintenance often arise.

Apart from Mozambique, women in informal unions are not entitled to inherit their deceased partner’s property. In Mozambique, women who have lived with their partners for more than one year are entitled to inherit property.

Dispossessing widowsDispossessing widows of property, though a criminal of-fence in most of the region, is a common practice and a

59 Sections 16 and 17 of the Will and Inheritance Act. See also Women and Lawin Southern Africa Research and Educational Trust- Malawi, Dispossessing the Widow,2002

60 Section 10 of the Zambian Intestate Succession Act, Chapter 59 of the laws.

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big problem in the region. 61 This is because the statutes are often a compromise on the customary law position, or

-cepted. Traditionally, widows could continue accessing the property left by their deceased husbands when they joined the household of the one entitled to inherit, but this practice is dying out especially due to HIV/AIDS. As a result husbands’ relatives are grabbing property from widows, especially those who are refusing to remain as part of the family (through widow inheritance). 62

The high incidence of HIV/AIDS has worsened disposses-sion of widows. The table below illustrates the scale of the problem.

Table 9.2 HIV/AIDS infection rates in Southern Africa

Country % of adult population infected with HIV/AIDS5

Angola 5,5Botswana 38,8Lesotho 18Malawi 15Mozambique 13Namibia 22,5South Africa 20,1Swaziland 33,4Zambia 21,5Zimbabwe 33,7

Generally, the epidemic has made women more vulnerable to disinheritance. In some cases, relatives often delay the

die. As a result a lot of widows and their children fail to access anti-retroviral therapy because they cannot access the property (including money) they are entitled to 63.

61 For instance in Zambia the highest number of complaints made to the police in

62 Conteh, M. Le Beau, D. & Iipinge, E. (2004). Women Face Discrimination From

land rights workshop in Lusaka, 2004 citation not yet available. See also the UnitedNations. (2004). Report of the United Nations Secretary General’s Taskforce on Womenand Girls in Southern Africa.

63 For instance in Zambia.

9.4 Affirmative action policies

Declaration 64 under which 30 percent of people in deci-

Mozambique, state parties have not yet implemented this

attempted but have not been entirely effective.

Women are still underrepresented in elected positions. In Zambia’s 2001 elections, only 19 women were elect-ed into a 120-seat parliament. Women constitute less

are more far more men than women in formal wage employment; 65 and

-sues are yet to be enacted due to the reluctance of

-ish women’s minority status and allow them to register land in their names, has been pending since 2000.

There have been some positive developments. In Mozambique, the Land Act contains a clause entitling women to property

-tomary marriages and informal unions between men and women. Some governments have made efforts to allocate land to female-headed households. In Zambia, the draft land policy provides for 30 percent of all land allocated being reserved for women. In Namibia, there are schemes to assist

enrolment, retention and completion of education.

In Zambia, for instance, land allocated to women was far away from the city, was undeveloped and without any serv-ices. Service charges and survey fees were also unaffordable to many women. A regional audit of the states’ implemen-tation of the Southern African Development Community Declaration on Gender and Development and its addendum on violence against women and children shows a relatively

64 SADC declaration on Gender and Development 1997.

65 Zambia Association for Research and Development and SARDC-WIDSAA. (1998).Beyond Inequalities: Women in Zambia. P. 25.

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poor picture, 66 yet the compliance period has come to an end (1987-2005).

9.5 Best legislation, policies and practices on gender issues

Some of the legal and policy provisions and practices are good, and replication in other countries should be considered. The following fall into this category:

Provisions in Mozambique’s Land Act 1997 and the

land and allow for the joint registration of property;

The initiative by Mozambique’s National Survey and Mapping Department to give women applicants title in the absence of male applicants, contrary to local cus-tom;

A mass sensitisation programme on women’s land rights and the initiative to integrate it into literacy pro-grammes were good practices, as was the joint initiative

-ture Organisation, local authorities and NGOs to guar-antee women’s rights through access to information and resources;

The draft land policy in Zambia, which provides for 30 percent of all land demarcated to be set aside for women, and the remaining 70 percent to be competed

measure;

Law reform proposals in Lesotho for the harmonisa-tion of laws and the repeal of discriminatory provi-sions that hamper women’s property rights;

Upgrading schemes for informal settlements and slums are a good practice. Special attention, however,

from these schemes. The urban upgrading scheme of Lesotho is a good example, where female-headed

The Statutory Housing and Improvements initiative in Zambia where people in informal settlements were given licences is also a good practice because they can

66 See http://216.239.59.104/custom?q=cache:19QFIm85YyoJ:www.genderlinks.org.za

use these as collateral for credit to improve their hous-ing situation.

10 Racial and ethnic equality

inequalities remain between the patterns of land holding by the descendants of white settlers and those of indigenous Africans. This is primarily because of the harsh restrictions on

-pendence. The high cost of acquiring land in these formerly white areas, together with well-off neighbourhood resistance to the settlement of poor people close to their homes, has meant that these unequal patterns of land ownership persist.

enacted to encourage local government planning towards integration, but its effect has been limited to date.

Also largely as a legacy of colonial “divide and rule” policies, there are some examples of ethnic tension between various groups, especially in relation to access to land and housing. In

tenure rights for certain ethnic minorities, such as the San in

has resulted in communities that are more ethnically diverse than in the past.

In addressing the range of issues relating to race, gender and ethnicity it is important to note that governments in the region vary widely. Some are guided by, and generally fol-low, progressive new constitutions, while others are guided by more traditional and conservative philosophies. These

and housing sector, especially insofar as the rights of women are concerned.

11 Regional recommendations and priorit ies

detailed recommendations on this scale. Detailed recommen-dations are made at the conclusion of each country report.

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However, it is clear that there are a number of initiatives on a regional level that could strengthen land rights, and especially

-

instances of good practice emerging from the region could form the basis for a well-focused testing and rollout of these experiences on a wider scale.

Initial recommendations for further action within the region are set out below:

(1) Women’s land, housing and property rights are compromised by discriminatory laws. There is need for law reform. The relevant statutes need to be harmonised and updated and the international instru-ments need to be domesticated. Constitutions should

for improving security of tenure of residents of informal settlements, particularly women. The

-al Campaign for Secure Tenure as well as the Cities Alliance’s “Cities without Slums” programme will be essential for the realisation of this objective. The re-cently established African Ministerial Conference on Housing and Urban Development 67 (AMCHUD) is setting up a secretariat that should provide continen-tal leadership in the development of innovative urban land management practices.

(3) Clarify the legal basis for tenure where the formal, informal and customary tenure systems overlap.

overlapping tenure systems, there is a great deal to be done by both national and local governments to clear up the existing confusion. This needs the development

the provision of alternative land for persons who may

same land. It will be very useful to model efforts in this regard on the Namibian and Zambian good practices

-

67 For more on the AMCHUD’s Durban Declaration and the Enhanced Framework forImplementation see the UN-Habitat’s website www.unhabitat.org/amchud.

ible new tenure forms for residents of informal settle-ments.

(4) Design pragmatic and equitable strategies for managing informal settlements. This is an ongoing

it is imperative that countries in the region accept that informal settlements are a reality that cannot be wished away. Instead they have to be integrated into the exist-ing urban fabric. Upgrading of these settlements will a

(5) Accommodate anticipated effects of migration, social changes and HIV/AIDS in all policies and plans. Data collection and information manage-

the region. The impact of HIV/AIDS on women’s land, housing and property rights for instance needs to be extensively investigated. Gender disaggregated data needs to be complied. Increasingly, however, data collection has grown stronger. It is essential that re-sources and capacity are developed, with the assistance of development partners.

(6) Strengthen regional social movements and NGOs involved in the urban land sector. The region is poorly served by social movements and NGOs, espe-cially ones operating at the regional scale. Prevailing poverty, as well as the so-called brain drain evident throughout Africa, necessitates the focused support and assistance of development partners.

(7) Strengthen organs of the African Union to ex-change information on best practices and estab-lish regional standards for urban tenure security.AMCHUD provides a timely opportunity to build net-

-retariat, supported by UN-Habitat, will provide techni-cal and administrative assistance to member states.

(8) Encourage donor support to national govern-ments to develop dedicated urbanisation policies.To date most donor support has been directed towards rural development in Africa. New institutions such as the New Partnership for Africa’s Development’s Cit-ies Programme, the Commission for Africa and AM-CHUD provide vehicles for concerted action to en-sure that donor support is focused on empowering

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Southern African countries to meet their urbanisation challenges.

(9) Support initiatives to develop new, innovative and appropriate practices for land registration and cadastral survey in the region, building on some emerging good practices.

-vative practices emerging from Southern Africa, as well as promoting greater understanding within the region to effective innovations elsewhere in the world. Specif-ic efforts, perhaps through the organs of AMCHUD,

(10)Focus governments’ attention on ensuring a more prominent place in poverty reduction strategy pa-

-ment and gender issues. In the recent AMCHUD

Durban Declaration African countries committed themselves to prioritising the potential of good urban land management in economic and social develop-ment, as well as poverty reduction and “mainstream-ing” these in their poverty reduction strategy papers. This initiative deserves to be supported and strength-ened.

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Land law reform in Zambia

Introduction

Origins of report

This is one of four reports that examine in detail land tenure systems and law reform in selected southern African coun-tries: Lesotho; Mozambique; Namibia; and Zambia. The preceding regional overview provides a broad summary of issues across the region, i.e. over and above the four coun-

upon which the four country studies are based. The country

and authoritative literature, in addition to a wide range of interviews. Each country report is authored by a resident

Themes

In this report examination of land tenure has been con-sidered broad enough to cover matters regarding housing, marital property issues, inheritance, poverty reduction and local government. An additional important aspect of the study is its focus on gender and its relationship to each of these issues.

Structure

The report is structured to capture the wide-ranging topics mentioned above. Standard headings have been used across all four reports, with some inevitable variation.

-

of how the governments and legal systems of the country function in relation to the subject matter. There is a discus-sion of the socioeconomic conditions. The section concludes by examining the level of civil society activity in the countries of study.

The next section, on land tenure, is the core of the report,

relevant constitutional provisions, laws and policies. The

holders of various types of land.

The next section examines housing rights, including related

sanitation. It deals with constitutional matters and relevant laws and policies.

The next subject area is inheritance and marital property is-sues. The initial emphasis here is on determining whether a constitutional provision that prevents discrimination on grounds of gender is provided. Issues of marital property rights hinge on whether both men and women enjoy equal property rights under the law. An important matter that in-

issue of enormous importance in southern Africa.

A section is then dedicated to examining the country’s poverty reduction strategies or similar initiatives and their relationship to the primary themes of the report.

The section on land management systems maps the institu-tions involved in land management and administration, and

section also analyses the relationship this formal bureaucracy has with informal settlements and their dwellers. The section concludes with a selection of court decisions on land and housing rights cases.

Local laws and policies are then scrutinised to determine how they address land and housing rights, as well as their relationship with national laws.

Implementation of land and housing rights is the next topic of discussion. It addresses how successful the actual delivery of these rights has been.

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any positive and possibly replicable practices that have emerged. The conclusions section infers from the previous section,

Figure 1 0 Map of Zambia

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Background

1.1 Historical background

of western Zambia granted concessions to representatives

Africa Company administered the territory as Northeastern and Northwestern Rhodesia until 1911, when the two were joined to form Northern Rhodesia. In 1924, the whole area

-dom itself was excluded from colonial legislation and left to

68

In this period land was categorised into two types: Crown land and Native Reserves, while a third category of Trust land was added in 1947. 69 When Zambia became an inde-pendent republic in 1964, Crown land became state land and the rest continued to be categorised as Reserves and Trust land. At independence, state land comprised 6 percent of the total land area, while the balance of 94 percent was made up of the Reserves and Trust land.

A 1969 referendum and economic reforms in 1970 led to consolidation of political power behind the United National Independence Party (UNIP), led by Kenneth Kaunda, and the nationalisation of industrial and commercial interests. This effectively gathered together the political and economic strands of the nation’s power base and gave Kaunda and his

68 M, Chulu. & Beele, E.M. (2001). Land Law and Policy in Zambia after Kaunda.in Lungu, J. and Akombelwa, M. (eds.) Land Policy and Reform: The Moses KaundaMemorial Lectures, ICARES Workshop Proceedings, No 2, Kitwe.

69 In 1928, the Northern Rhodesia (Crown Lands and Native Reserves) Orders-in-Council were passed giving legal effect to the categories under which land in the territorywas to be administered. Crown land could be alienated to European settlers under Englishlaw. Native Reserves meant land set apart “for the sole and exclusive use of the nativesof Northern Rhodesia”. Non-natives could only acquire limited interests in land in thesereserves. In 1947 this scheme was revisited and the Northern Rhodesia (Trust Land)Orders were passed giving effect to a third designation of land in the territory. Trust land

of Northern Rhodesia”. Land under this category could be alienated to non-natives as

for the “natives” and a separate category of land needed to be introduced within whichnon-natives could acquire rights of ownership, thus bringing them into direct contact withthe natives. Within Trust land, non-natives could acquire interests up to 99 years.

ruling UNIP the mandate to deal with even the most en-trenched interests in land.

1975 Land ReformsThe land reforms of 1975 were based on Kaunda’s philoso-phy that land should not be subject to speculation by “inhu-man exploiters” and resulted in the nationalisation of land.

statutory leases. State consent was required for all dealings in land, except for land under customary law (Reserves and Trust land). Customary tenure could be converted into lease-hold, but the philosophy underlying the 1975 reforms was that the land still belonged to the whole community.

The 1975 Land (Conversion of Titles) Act abolished the

that “land has no value”, thereby banning the sale of vacant,

the land was to be disregarded and only the “un-exhausted improvements” 70 upon the land could be valued and sold. All transactions became subject to scrutiny by the Government Valuation Department in order to ascertain the value of the un-exhausted improvements upon the land.

The major effect of the 1975 changes was to reduce cases of land speculation rather than opening up the resource to the ordinary Zambian. This, in part, has led to the current

-vantaged has been mostly by way of invasions of vacant land

The reforms did not achieve what they were intended to achieve, and instead hampered development as mortgages could not be created on vacant, unused land. In addition,

sale prices precipitated long delays in the processing of land transactions, frustrating both vendors and buyers. This led

conducted between parties who agreed a sale price different

70 Unexhausted improvements refer to all activities undertaken with a view to improvethe land by way of constructing buildings or other infrastructure upon the land.

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HousingIn 1974, the government passed a housing law recognising the rights of people living in unplanned settlements, and showing commitment to the provision of basic minimum infrastructure in such areas. 71 This paved the way for im-plementation of a programme on sites and services, and

-ers of plots in site and service areas, and 30-year occupancy licences to holders of plots in upgrading areas. The upgrading

-ure of success. This success was not, however, replicated in the Copperbelt and other line-of-rail towns, and therefore did not affect the majority of marginal groups in the rest of the country. In the land reforms of 1975, the operation of real estate agents was prohibited, rent control measures were adopted, local authorities were urged to prevent unauthorised

in local authority housing.

The economyThe Zambian economy has gone through a number of

reform programme became necessary and the Zambian gov-ernment was compelled to introduce a 40 percent devaluation of the currency as well as elimination of subsidies and price controls. 72 As the exchange rate further deteriorated, rising

and gave rise to social and political concerns, as evidenced by the food riots of 1986. 73

In 1987 the government suspended the Structural Adjustment Programme. It unilaterally imposed a moratorium on debt repayments, revalued the exchange rate and reinstated some of the subsidies. A New Economic Recovery Plan (NERP)

71 The Housing (Statutory and Improvement Areas) Act of 1974 (Cap.194).

72 Ibid.

73 Ibid.

programme. The NERP sought to achieve similar objectives to the Structural Adjustment Programme, using a different

in 1991 the Movement for Multiparty Democracy (MMD) came to power determined to re-establish relations with the international community and restructure the economy in line with their traditional conditionalities. Chief among the new government’s policies was the privatisation of all state-owned

1991 land reformsThe MMD came to power in October 1991 after defeating the UNIP government, which had ruled Zambia since inde-pendence in 1964. Among its promises, the new government vowed to deliver wide-ranging legal reforms, including re-form of the land law. Economic value for undeveloped land and the right of private land ownership were reintroduced. The separate categories of Reserves and Trust land were col-lapsed into one category of customary land. A uniform legal

envisaged. Tenure conversion and land allocation of custom-ary land, combined with recognition of customary rights and repeal of discriminatory statutes that still harboured racial overtones, was announced. Conversion of customary rights into statutory leasehold, however, meant a form of land privatisation, as the act of transferring to leasehold creates individual rights over the land, effectively privatising it even though it is in an area of customary land. 74

The Land Act of 1995 introduced additional provisions intended to limit or control unauthorised occupation of land. 75 In the urban areas, squatting or “invasion” of land has tended to occur mainly where the land has been vacant

74 Land held under customary tenure cannot be alienated by the president withouttaking into account the local customary law on land tenure or consulting the chief andthe local authority concerned. Under no circumstances can land be alienated for a periodexceeding 99 years unless it is in the national interest and is approved by a two-thirdsmajority of the National Assembly.

75 Section 9 (1) and (2) of the Land Act 1995 states that “A person shall not withoutlawful authority occupy or continue to occupy vacant land” and that “any person whooccupies land in contravention of [this section] is liable to be evicted.”

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The legislative branchThe legislative power of the Republic of Zambia rests in parliament, a composite body made up of the president and the National Assembly. 79 The president calls parliament to

does not play an active role in parliamentary matters. The

80

The National Assembly is composed of 150 elected mem-bers 81 and not more than eight members nominated by the

82 Members are

suffrage and by secret ballot in which persons aged 18 years and above and permanently resident in Zambia are eligible to vote. The current parliament has only 17 female MPs, who constitute 11 percent of the total membership of the house.

The judicial branchThe Zambian judicial system is made up of courts arranged in a hierarchy, with four primary levels. 83

Local CourtsAt the base, the Local Courts are presided over by senior presiding, presiding and ordinary justices. The Local Courts

-diction is limited according to the grade. 84 Local Courts of either grade can determine matrimonial or inheritance claims that are based on African customary law; when they do they are limited to claims not exceeding 13,889 fee units for Grade

85

79 Cap. 1 art. 62.

80 http://www.parliament.gov.zm/index.php

81 There are 150 parliamentary constituencies. The present composition of theHouse is as follows; MMD (in government) 73, opposition parties including independentmembers, 74; nominated members, eight; vacant, three.

82 Cap. 1 art. 63(1).

83 Purdy, R. (1984). The Zambian Judicial System: A Review of the Jurisdictional Lawin Ndulo, M. (ed.) Law in Zambia. East African Publishing House, Nairobi.

84 Cap. 29 s 68.

85 These fee units are calculated at a rate of 180 Kwacha per unit. StatutoryInstrument No. 7 of 2001 under the Local Courts (Amendment) Rules, 2001. (US$1 wasworth K4,280 on August 30 2005.)

owner. The concept of land ownership in traditional African society is one where the community owns all land on behalf of its members and one only needs the consent of either the headman or chief, or indeed the community, to settle in a particular area. This is acceptable in rural village settings, but in urban areas this approach leaves the land “invaders” vulnerable to eviction, or to occupation of land that is not

or other natural disasters.

1.2 Legal system and governance structure

The Zambian legal system and governance structure pro-vides for three main branches of government: an executive, a legislature and a judiciary.

The executive branchThe executive branch is headed by the president who is the head of state and of the government and commander-in-

76 The president is authorised by the Constitution to dissolve the National Assembly, establish and dissolve government ministries and departments subject to the approval of the National Assembly, and appoint such persons as are required by the Constitution or other laws. He is assisted by a vice-president, who is appointed by the presi-dent from among the members of the National Assembly. 77

Government affairs are divided between 21 ministries. A minister, assisted by a deputy minister, runs each ministry. Some portfolios have two deputy ministers. In addition, the

minister assigned to them. Each of the nine provinces also has a minister in charge of its affairs. The current cabinet is made up of 66 ministers and deputy ministers. Provincial ministers for each of the nine provinces are responsible for coordinating government business at provincial level. Only

women. 78

76 Cap. 1 art. 33(1).

77 Cap. 1 art. 45.

child development, housing and local government, lands, information and broadcastingservices, and community development and social services.

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Subordinate or Magistrates CourtsAt the next higher level, the Subordinate Courts are presided over by senior resident, resident, Class I, II and III magistrates.

86

The jurisdiction of a Subordinate Court depends on its class rating and the type of magistrate presiding. The jurisdiction varies between classes, not only in amount, but also in ac-tions that can be tried. While all Subordinate Courts may hear certain cases based on marriage and family law, certain other types of cases in those areas are restricted to the higher Subordinate Courts. Subordinate Court jurisdiction does not extend to include matters in which the validity of a will or validity of a marriage other than a customary law marriage is in question. If title to land is in dispute, a Subordinate Court may only adjudicate the matter with the consent of all parties. 87 These restrictions may, however, be superseded by orders issued by the chief justice, increasing the jurisdiction of a Subordinate Court. 88

High CourtThe High Court has an establishment of 30 puisne judges 89

. 90 The High Court has unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law. 91 It also has jurisdiction for the administration or control of property or persons. 92 The court is also given broad jurisdiction in the areas of probate and marriage law. 93

Supreme CourtThe Supreme Court is composed of nine judges, includ-ing the chief justice and the deputy chief justice. 94 The

86 Cap. 28 s 5.

87 Cap. 28s 23.

88 Cap. 28 s 24.

89 Cap. 26 s 3.

the National Assembly, on the advice of the judicial service commission. Art 95(1).

91 Cap. 1 art. 94(1). The only exceptions are matters in which the Industrial RelationsCourt has exclusive jurisdiction under the Industrial Relations Act.

92 Cap. 27 s 9(2).

93 Op. cit., 24.

94 Cap. 26 s 2.

National Assembly. 95 The court has jurisdiction to hear and

matters. Appeals resulting from High Court decisions and certain Subordinate Court decisions regarding rental and tenancy rights under the Rent Act 96 and the Landlord and

97 go to the Supreme Court. Any person aggrieved by a decision handed down by the Lands Tribunal can appeal to the Supreme Court within 30 days of the matter being adjudicated. 98

Lands TribunalThe Lands Tribunal falls under a category of administrative

down by such tribunals are subject to appeal as above. 99 The 1995 Lands Act created the Lands Tribunal, which is intended

way. However, the tribunal is still too technical to be acces-

handle cases on customary land”. This effectively leaves out the poor, most of whom hold land under customary law. 100

Since the advent of colonial rule, Zambia has maintained a “dual legal system”. The organisation of the judiciary main-tains the local (formerly native) courts system as indicated above, which is separate and distinct from the English or statutory courts system, which administers statutory law and English common law. This duality in the legal system assigns a superior position to English law over existing indigenous

the majority of Zambians are subject to customary law in

95 Cap.1 art. 93.

96 Cap. 206 s 7.

97 Cap. 193 s 25.

98 Cap. 184 s 29.

99 Bota K. Telephone interview with the author, May 11, 2005.

100 Machina, H. (2002). Women’s Land Rights in Zambia: Policy Provisions, LegalFramework and Constraints. Paper presented at the Regional Conference on Women’sLand Rights, Harare, Zimbabwe, 26 – 30 May 2002.

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the areas of marriage, succession, child custody and property rights, and yet these same areas are also governed by statutory law. 101

Table 1.1 Jurisdiction of various courts in land matters

Court Jurisdiction

Supreme Court Final court of appeal

High Court

Unlimited or original jurisdiction to hear and determine any civil or criminal proceedings except in labour matters for which the Industrial Relations Court has exclusive jurisdiction. In particular the court has jurisdiction to:Decide on compensation for future interests extinguished under the Trusts Restrictions Act 1970 (Ss. 2 and 6).Decide on legality or otherwise of caveats against dealings with land (Ss.2 and 81 Lands and Deeds Registry Act 1914).Settle disputes relating to or in connection with property under the Lands Acquisition Act 1970.Decide on whether a person is a member of a body corporate under the Land (Perpetual Succession) Act, 1926 (S.11)

Subordinate (Magistrates) Courts

All personal suits whether arising from contract or tort or both, where the value of the property, debt or damage claimed does not exceed K30 million for a court presided over by a Principal Resident Magistrate, K25 million for a court presided over by a Senior Resident Magistrate, K20 million for a court presided over by a Resident Magistrate and K10 million for a court presided over by a Magistrate First Class.Jurisdiction to hear and determine actions for the recovery of land depending on the value of the land in question or the amount of rent payable per annum and issue eviction orders. A magistrate First Class can hear claims up to K5 million or rent for K1.2 million, Resident Magistrate up to K20 million or rent for K4 million, a Senior Resident Magistrate up to K25 million or rent for K5 million and a Principal Resident Magistrate up to K30 million or rent for K6 million. Can hear and determine cases under the Landlord and Tenant (Business Premises) Act, where annual rentals are as stipulated above.

Source: Kaunda, M. (1993)

101 Kachingwe K. (2004). Why customary law should be gender-friendly. Times of Zambia. June 10.

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Figure 1.2 Structure of courts in the Zambian judicial system

Governance structureThe Zambian public service is managed at national level by

management and coordination of the public service. The secretary to the cabinet is the head of government admin-istration, which comprises sector ministries and statutory bodies, provincial and district administration.

Provincial administrations are headed by deputy ministers, who are assisted by permanent secretaries with supervisory responsibilities for sector ministries at provincial level. The various departments of the sector ministries are in turn head-ed by provincial heads of department, who are answerable to their respective ministries on all technical matters and to the provincial permanent secretaries on all daily administrative matters.

Provincial Development Coordinating Committees (PDCCs) are responsible for coordinating development activities at provincial level. However, these committees have no legal basis for their existence and this has tended to impede their effectiveness.

SUPREME COURT

HIGH COURT INDUSTRIAL RELATIONS COURT

MAGISTRATE

(SECOND CLASS)

MAGISTRATE

(THIRD CLASS)

MAGISTRATE

LOCAL COURT

(GRADE A)

LOCAL COURT

District administrationAt the district level, there is a dual local governance sys-tem. This embodies devolved locally elected governments whose powers and functions are described by the Local Administration Act of 1991. 102

A District Commissioner (DC) is responsible for coordinating sector ministerial departments responsible for implementing government programs at the district level as well as those of the local authorities operating under the Local Government Act.

District Development Coordinating Committees (DDCCs) have been established for coordinating the planning of de-velopment activities at district level. As in the case of the

the DCs who chair the DDCCs have no legal authority to discipline the sector ministry personnel at district level. This has contributed to the operational ineffectiveness of these committees. 103

102 Chiwele, D.K. (2002). Local Governance, Participation and Accountability: TheZambia Case Study. European Forum on Rural Development Cooperation, Agropolis,Montpellier, France, September 4-6 2002.

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Local governmentThe local government system operates at district level and is composed of city, municipal, district and township councils or management boards. 104 There are 72 districts in Zambia, each one is run by an elected council. A council consists of the MPs in the district, two representatives appointed by chiefs in the district and all the elected councillors in the district. 105

and a deputy mayor are elected annually by the council from among their members. 106 The number of councillors depends on the number of wards in a district. In the major urban centres this number can be between 20 and 30. At the time of writing women made up about 20 percent of the number of councils polled. 107

According to the Local Government Act, councils are sup-posed to be funded by monies appropriated by parliament to cover such functions as provision of water and sanitation,

primary education, and agricultural services. 108

Local governments in Zambia are faced with wide-ranging

generating activities. The period between 1960 and 1972 was one of the most successful for Zambian local authorities. During this period, they received grants from central gov-ernment based on a predetermined formula and were also responsible for electricity distribution. The period between 1973 and 1980 saw the withdrawal of housing unit grants and a gradual reduction of all other grants. Land was de-clared to have no value by the central government, thereby undermining local property rates tax. Electricity distribution was also withdrawn from local authorities. In 1980 the Local

104 Cap. 281 s 3.

105 Cap. 281 s 9(1).

106 In the case of a township or district council, a chairperson and vice-chairpersonare elected in a similar manner. Cap. 281 s 16 (1).

female, while Mufulira has 24 councillors (all male) with one vacant ward (informationprovided by Directors of Administration at respective councils in interviews on March 142005 at Mufulira Municipal Council, March 15 2005 at Kitwe City Council and March 172005 at Ndola City Council.

108 Cap 281.

Administration Act was adopted, which decentralised the system of local government. Many functions performed by central government were assigned to local authorities without corresponding resources. 109

Since 1991, several measures have been introduced that have

include the complete withdrawal of central government funding to local governments; the transfer of responsibilities for motor vehicle licensing from local authorities to the Road

-erties exempted from property taxation by the Rating Act of 1997; the sale of council housing by central government to

110 thus reducing both the asset base and rental incomes of councils; and a central government instruction prohibiting the eviction of rental or purchase defaulters from council houses. 111

As a result of these measures many councils face serious problems in meeting their payroll and other statutory obliga-tions. 112

In 2003 the government adopted the draft decentralisa-

effective delivery of services to all citizens through a fully

109 Ndeke, F.T.J. Chitembo, A. and Dauskardt, R.P.A. (1999). Widening the ResourceBase of Kitwe City Council. SINPA ‘Support to the implementation of the National Plan ofAction (Zambia). Institute for Housing and Urban Development Studies (IHS), Rotterdam.NB: The Local Administration Act is different from the Local Government Act. The lattersets out the institutional structures for local governance while the former deals with thedecentralised system of local government.

110 All houses built before 1959 were given away free of charge. On June 17 1996,the Zambia Daily Mail carried an article entitled “Kitwe tenants demand refund fromcouncil”. The report stated that “sitting tenants in Kitwe who bought houses beforepresident Chiluba directed local authorities to give away those built before 1959 free ofcharge are demanding a refund of the money paid to the council to enjoy the presidentialdecree”. The Kitwe Town Clerk responded by saying that the circular from government onthe disposal of houses was silent about sitting tenants who had bought the houses beforethe presidential directive and appealed to higher authorities for guidance.

111 Op. cit., 42.

112 In an article entitled “Council seeks K350m. for survival”, the Zambia Daily Mail ofJune 12 1996 reported that the Ndola City Council was scouting for about K350 million

resource base had not changed since 1993, while the cost of labour had increasedby 184 percent of basic pay during the same period. The town clerk was mandated toborrow K100 million from the Zambia National Commercial Bank as an overdraft andK250 million from Finance Bank to cover the month’s salaries, while pledging its KafubuInn and Ambassador Hotel as collateral for the loans. A report on the Kitwe City Council’s

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decentralised system of government characterised by open, -

the centre and periphery”. 113 Through this policy it is hoped

of local authorities engaging with the communities through the formation of Area Development Committees, which will replace the Residents Development Committees (RDCs). Polling districts will be used as catchment areas for develop-

these committees in the same way as they have done with RDCs. Area Development Committees will be involved in all

-ment projects communities will be expected to contribute 25 percent of the cost in either labour or cash. The policy has

1.3 Socioeconomic context

2,or 2.5 percent of Africa’s continental surface area. It shares borders with Angola, the Democratic Republic of Congo,

Namibia. Censuses conducted in 1980, 1990 and 2000 re-ported total populations of 5.7 million, 7.8 million and 9.9 million respectively. The 1970-1980 period witnessed the largest population growth rate of 3.1 percent a year, followed by 2.7 percent a year between 1980 and 1990, and 2.4 percent a year from 1990 to 2000. The population is relatively young, with 51 percent between the ages of 15 and 64 and only 2.7

indicate that 65 percent of the population live in rural areas and 35 percent live in urban areas. The country’s population

114 The cit-

as “rolling borrowing” with outstanding overdrafts in April 1999 of K234 million servicedat 55 percent.

114 The most densely populated provinces are Lusaka (65 people per square kilometer)followed by theCopperbelt (53 people per square kilometer). Population growth rates forthese two provinces stood at 3.4 percent p.a. for Lusaka and 0.8 percent p.a. for theCopperbelt during 1990-2000. For the same period the rural population grew at a rate of3.0 percent p.a. while the urban population stood at 1.5 percent p.a.

concentration. The Copperbelt Province, home to Ndola and Kitwe, is the most populous province.

Most households are headed by males, although the 2000

headed by women. The 2000 census also estimates an Overall Dependency ratio of 96.2 and a Child and Aged Dependency ratio of 90.6 and 5.4 respectively. The majority of male household heads were married (88.4 percent), while most female household heads were widowed (45.5 percent). The

115

According to the Living Conditions Monitoring Survey of 1998, 73 percent of the population live in poverty. Poverty in rural areas affects 83 percent of the population, while in urban areas 56 percent of the population lives in poverty.

Diseases such as HIV/AIDS have exacerbated this situation. In 2000 it was estimated that 16 percent of the popula-tion aged between 15 and 49 years was HIV-positive. This amounts to more than 1 million affected people, of whom close to 600,000 are estimated to be women. 116 A far higher percentage of non-infected people are directly affected by the presence of the disease: the pandemic has produced

that 974,000 children will be orphaned. Households with orphans are increasingly headed by grandparents. Research in Zambia’s Northern Province revealed that female-headed

care of persons with AIDS, 84 percent perceived the future 117

Moreover, stigmatisation that results from HIV/AIDS-

118

115 UN Food and Agricultural Organisation (FAO). (2004). HIV/AIDS, gender inequalityand rural livelihoods, Zambia.

116 Joint United Nations Programme on HIV/AIDS. (2002). Estimated number ofpeople living with HIV/AIDS, end 2001.

117 Op. cit.,49, pp. 1, 4 and 6.

118 Justice for Widows and Orphans Project, (2003) [Brochure].

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The 2000 census gave a total of 1.8 million housing units 119 The most common form

of housing is traditional housing, 120 which constitutes 62.4 percent of all housing units. More than 86 percent of housing units in rural areas are traditional housing (non-conventional) compared with 14.7 percent in urban areas. Conventional housing was the majority type in urban areas (60.2 percent). 121 Non-conventional housing made up over one-third of all housing in Zambia. These are mostly houses

122 About two in three -

123

About 78 percent of housing units are occupied by single households while 1.9 percent are shared. Eighty percent of housing units are self-built, with only 12 percent purchased, 4 percent acquired freely, and 3 percent inherited. Due to high interest rates, mortgaging is very rare in Zambia. The practice of employers providing free accommodation or at minimal rentals is still carried on in most public institutions, as well as some parastatal and private organisations. 124 The

continued to be catered for under housing policies that date 125 Of those housing units rented

mobile house, part of commercial building, improvised/make shift, collective/institutional,

120 Traditional (non-conventional) housing is generally built of poles plastered withmud and thatched with grass (round huts). However, different ethnic groups have theirown ways of building. In Luapula province, for example, houses are made in the moreconventional square or rectangular form using sun-dried mud bricks and roofed withcorrugated iron sheets rather than grass thatch but these are still referred to as non-conventional houses.

121 Conventional housing in this case means housing built with modern buildingmaterials and built to an approved standard in compliance with municipal bylaws. Themajority of housing units in Lusaka Province (82 percent) and Copperbelt Province (64percent) are conventional housing.

122 These are sometimes referred to as Adobe or Kimberley bricks. They are usuallyhandmade and left to dry in the sun and are to be distinguished from bricks made byindustrial processes.

124 These include the two universities, government colleges and boarding schools,government institutions such as the police and prison services and the few remainingparastatal organisations.

125 The practice of employer-provided or subsidised housing goes back to thecolonial era when expatriates working in the civil service and the mines were providedwith government or mine-owned housing on the basis that they would return to their

from landlords other than state institutions and private com-panies, the largest percentage comprises those rented from individual or private landlords (91.8 percent). Since the sale of council houses, renting from local councils constitutes an

The percentage of households with access to safe water in the 2000 census was slightly above 49 percent, while only 15 percent had access to proper toilet facilities and 16.7 percent had access to electricity. Centrally organised garbage dis-posal facilities are not available and 62 percent of households therefore dispose of their rubbish by burying it or dumping it in a pit. Urban households generally have better access to facilities than rural households. The proportion of house-holds with access to proper sanitation facilities was higher in urban than in rural areas, as was the number of households with access to safe water and electricity. In terms of energy

1.4 Civil society

Organisations in informal settlements Since independence, political leadership structures have existed in most informal settlements. The reasons for this go

the struggle for independence had its strongest support -

ity of squatters. 126 After independence, party organisation

the settlements a form of legitimacy in the eyes of the party and government. The imposition of a “one-party par-ticipatory democracy” under Kaunda’s UNIP in 1972 further

who organised residents to support UNIP. This organisation home countries after expiration of their contracts and did not therefore need to ownhousing in this country. Although it can be argued that this represents a drain on publicresources for those organisations that derive their income in part from government grants,the lack of an affordable mortgaging mechanism means that many parastatal and publicservice employees would be left without suitable accommodation in the absence of suchprovision.

126 Schlyter, T. & Schlyter, A. (1979). George – the Development of a SquatterSettlement in Lusaka, Zambia. Swedish Institute for Building Research, Gavle.

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was based on constituencies, branches and sections. At the lower levels, party leaders organised the residents of these

127

The implementation of the Housing (Statutory and Improvement Areas) Act of 1974 (HSIA) required a mecha-nism for community participation. The concept of Residents Development Committees (RDCs) was introduced due to a shortage of central government capacity to cope with the needs of urban communities in housing. 128 RDCs evolved as a tool for local level organisation and as way of channelling community needs to the local authority level.

In all matters of community development in informal settlements in urban areas local authorities deal with the respective RDCs. The local authorities facilitate the activities of RDCs by helping them conduct non-partisan voluntary elections. The leaders elected in this process are expected to concentrate on developmental projects in their areas and have no involvement in party activities. Organisation within the settlement itself is based on a system of zones. A zone is made up of about 50 households. The zones elect zone sub-committees and from these members the community elects 12 to 14 RDC members, some of whom will be women. Outside of these formalised structures various other group-ings have arisen to cater for different needs in the peri-urban communities around Zambia’s urban areas. These include faith-based community organisations providing home-based care for HIV/AIDS patients, local land alliances and others catering for small-scale farming communities based on the peripheries of many of the urban areas.

Civil society organisationsThe growth of civil society in Zambia can be traced to the rise of the MMD in the run-up to the 1991 elections. Over this period, civil society operations became quite strong and now extend to issues of governance, gender, HIV/AIDS,

127 Op. cit., 55.

128 Zimba, W. Interview with the author, August 2004.

education, poverty alleviation, care for orphans and vulner-able children, public health and many others.

The relationship between the government and civil society has not been entirely smooth. The government tends to see civil society as an antagonist rather than a partner in gov-ernance and development. 129 In 2001, the government of

the Constitution to enable the incumbent president to stand 130 was constituted at

the height of this debate to give voice to the concerns of

all aspects of governance in the country. There are a number of other civil society organisations focusing particularly on issues of land, housing, women’s and children’s rights and access to legal aid.

National Legal Aid Clinic for Women (NLACW)NLACW was established in 1990 as a project under the Women’s Rights Committee of the Law Association of

Ndola and Livingstone. The clinic was established to provide affordable legal aid to women and children from marginal-ised social sectors at minimum fees. The three clinics handle all cases presented to them as long as they involve women

129 Saturday Post, July 3 2004.

130 The Forum’s members include the LAZ, Zambia Episcopal Conference, EFZ andNGOCC. Times of Zambia, July 6 2004.

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Law and Development Association The association, also based in Zambia’s southern region, facilitates human rights education through awareness raising (radio) programmes, among rural communities.

Catholic Commission for Justice, Development and Peace (CCJDP)

advocate for the economic, social, cultural and political rights of the most vulnerable. Since 2000, the commission has run a paralegal programme aimed at reducing human

radio programmes, drama performances, and conducts legal education in schools. It also trains paralegal advisers whose

-tion at community level, and provides legal representation for vulnerable women and children. The paralegal advisers

collaboration with the University of Zambia’s School of Law.

basis, are expected to avail their services to their respective

the Catholic Agency for Overseas Development and Oxfam. An evaluation of the impact of the programme is due to be carried out in the year 2006. 134

Young Women’s Christian Association (YWCA)The YWCA runs drop-in centres around the country for women and children in crisis situations. The Kitwe centre reports that they receive many cases related to the admin-istration of deceased estates. 135 These cases usually relate to administrators and family members wanting to evict the widow after the death of the husband. The centre’s advisers instruct families not to evict widows but instead explain the provisions of the Intestate Succession Act. They have found that the traditional attitudes of family members continue to prevail in the way in which issues of deceased estates are dealt with, which is that the house and property of the deceased belong to the family members – especially surviving parents

134 Mushinge, D. Interview with the author, 17 March 2005.

135 Matanda, B. Interview with author, 14 March 2005.

and seminars, giving legal advice, and distribution of news-letters and pamphlets. 131

Justice for Widows and Orphans Project -

cate widows and orphans about their basic human rights, to promote and safeguard those rights, and to advocate for legal reform. The project started operating in 2001 and formed

-ments. 132

and Chipata. Training of target groups (widows, orphans,

on inheritance rights. The project also organises general awareness-raising programmes on television and radio, and

-

training and treatment.

Women for Change

community. Women are empowered to identify their own con-cerns and to analyse causes and effects. This is done through role-plays, songs, drama and participatory training sessions that help to illustrate the negative impact of discrimination on women and of the community as a whole. Women for

traditional leaders in Zambia, covering women and children’s land rights, and shelter. The organisation has noted that various cultural practices that negatively affect women, such as sexual cleansing, early marriages, polygamous marriages, wife inheritance, domestic violence and property grabbing, have declined in its areas of operation. 133

131 Response to written request for information directed to Ndola Clinic dated August17 2004.

132 The network member organisations are: WLSA, NLACW, ZCEA, CCJDP, YWCA,Forum for Democratic Process, the judiciary, social welfare and police, and the VSU.

133 Centre on Housing Rights and Evictions (COHRE). (2004). Bringing EqualityHome: Promoting and Protecting Inheritance Rights of Women, A Survey of Law andPractice in Sub-Saharan Africa. pp. 197-198.

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–and that the woman was “only married” to their late family member. As such she has no rights to the property.

Zambia Land Alliance (ZLA)-

the interests of the poor. The alliance began in 1997 in a response to the land reform process initiated in the early 1990s. The objectives of the alliance include lobbying and advocating for “all-inclusive” policies and laws, carrying out

institutions.

The alliance is composed of four full-time member organisations. 136Under the current Land Policy Review

organisations, extending to village level. 137

OxfamSince 2000 Oxfam has been running the Copperbelt Livelihoods Improvement Programme (CLIP) based in Kitwe. The programme has laid the foundation for the devel-

from its operational areas in Kitwe, Mufulira and Chingola. Oxfam recently launched a Copperbelt Land Rights Centre, the objective of which is to become a one-stop shop for land information and advocacy, including on women’s land rights, particularly among poor peri-urban communities.

Women and Law in Southern Africa (WLSA) WLSA is an educational and research trust operating in seven countries in southern Africa. Its mission is to change the legal situation of women in southern Africa. WLSA Zambia runs a legal aid project in Monze, a rural district in southern Zambia, where mobile clinics are held every fortnight and many land-related disputes are received. Although HIV/AIDS is related to the disputes, this has only recently come

136 These are the Law and Development Association, Women for Change, CatholicCommission for Justice and Peace, and Zambia Civic Education Association.

137 Some of these organisations are PANOS Southern Africa, Community BasedNatural Resource Management and Sustainable Development, ZAW, TransparencyInternational-Zambia, Green Living Movement, WLSA, Integrated Rural DevelopmentInitiative and the National Association for Peasants and Small-scale Farmers.

out in the clinics following the introduction of a Prevention of Mother to Child Transmission of HIV/AIDS pilot project by the Ministry of Health. People in Monze are now openly discussing AIDS and have a name for it in the local language.

Habitat for Humanity

Christian housing mission. 138

motivating community groups to organise themselves into self-help housing cooperatives.

African Housing Fund

of the Zambian government and other development organi-sations in poverty reduction by assisting the urban and rural poor through community participation and integrated self-help initiatives in the provision of affordable, decent shelter, access to clean water, sanitation and energy supply and the improvement of living conditions through the provision of micro-credit schemes. Its objectives are achieved through

and improvement of their shelter.

2 Land Tenure

land and customary land. 139 Since the land reforms of 1975 abolished all freehold estates there is no category of private land as all land is held on a statutory lease from the state. State land means all land that is not located within a customary area. 140

extending from Livingstone in the south to Chililabombwe in the north, all land under the jurisdiction of town and city councils, protected forest areas, game management areas and

138 Habitat for Humanity fact sheet.

139 Prior to 1995 there were three categories, namely State and, Reserves and Trustland. Since 1995 the latter two have been consolidated into customary land.

140 Section 2, Lands Act No. 29 of 1995.

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land area of Zambia, while the balance of 94 percent is made up of customary land. 141

Although the demand for land has increased considerably, and

no accurate estimates of the amount of land in customary areas that has been converted to leasehold land. 142

2.1 Relevant constitutional provisions

Three provisions in the Constitution have a direct bearing on land and housing rights. Article 16, the property clause, follows the basic neo-Nigerian formulation in prohibiting the compulsory acquisition of property except on payment of adequate compensation. The various exceptions to this prohibition in Art. 16(2) include any law relating to aban-doned, unoccupied, unutilised or undeveloped land; actions

policy or policy effecting uniformity of common law and customary law; and any law providing for the conversion of titles to land from freehold to leasehold. These provisions effectively immunise land reform policies and laws from

holders and people living under customary tenure.

Article 23 prohibits the enactment of discriminatory laws. Discrimination includes differentiation according to race, tribe, sex, and marital status. However, once again there are certain exceptions to this general prohibition, namely laws that apply customary law to people to the exclusion of other law (Art. (4)(d)) and laws that differentiate with respect to adoption, marriage, divorce, burial, devolution of property

141 The areas comprising customary land are described in the schedules to theZambia (State Lands and Reserves) Orders, 1928 to 1964 and the Zambia (Trust Land)Orders, 1947 to 1964 contained in Appendix 4 of the Laws of Zambia. Although the ordersthemselves have been repealed by Act No. 29 of 1995, the descriptions remain valid

of Lands the amounts of land under the two categories are now in the ratios of about10 percent state land and 90 percent customary land. A process is currently underwayto document all the land parcels that have been converted from customary tenure toleasehold (Interview on June 8 2004).

142 Op. cit, 69.

possible to unfairly discriminate between people in the areas of customary law and family law.

2.2 National laws related to land and property rights

Land and property rights in Zambia are regulated according to provisions found in various statutes, among which are the following:

Agricultural Lands Act (Chapter 187, Volume 12)This Act provides for the establishment of the Agricultural

powers and functions. Its principal duty is to provide a legal

Common Leasehold Schemes Act (Chapter 208, Volume 12)

-ings into units with separate titles through the creation of common leasehold schemes.

Housing (Statutory and Improvement Areas) Act (Chapter 194, Volume 12)

local government to declare illegal or informal settlements as

to begin the process of regularising these settlements so that services (water, sewerage, electricity, roads and drains) can be

of occupancy licences for owners of parcels of land in these settlements.

The Lands Act (Chapter 184, Volume 12)This Lands Act streamlines the previous land categories into two main categories: state and customary land. The Act provides for the continuation of leaseholds and leasehold tenure. It further provides for the statutory recognition of customary tenure and for the continuation of customary into leasehold tenure. Thus, leaseholds can be allocated on

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land vests absolutely in the president of Zambia, who may alienate state land to any Zambian and, to a limited extent, to non-Zambians. However, the president may not alienate

law; permission must be obtained through consultations with the appropriate chiefs and the local authority, and persons whose interests would be affected must also be consulted. Chiefs can, however, issue a letter of consent, without prior

In practice, foreign investors start from the top and may obtain leasehold over customary land, which may lead to eviction of the local community. In some cases local commu-

143

to women’s land rights. As many customary areas are held

conversion of their customary land right to leasehold. The

Tribunal are also regulated and a number of previous statutes are repealed. 144

Lands Acquisition Act (Chapter 189, Volume 12)

land and other property. The Act operates on the basis that any land may be compulsorily acquired if it is in the national interest to do so. Not less than two months’ notice must be given in the event that the government wishes to repossess any piece of land, although the president can direct that less notice be given. Compensation is payable for any property acquired under the Act and can be given in monetary terms or by replacement with land.

143 Information shared during the UN-HABITAT Regional Workshop on Law, LandTenure and Gender Review in Southern Africa, Johannesburg, May 5-6 2004.

144 The laws that are repealed through the Land Act are: the Land (Conversion ofTitles) Act, 1975, the Zambia (State Lands and Reserves) Orders, 1928 to 1964, theZambia (Trust Land) Orders, 1947 to 1964, the Zambia (Gwembe District) Orders, 1959to 1964, and the Western Province (Land and Miscellaneous Provisions) Act, 1970.

Lands and Deeds Registry Act (Chapter 185, Volume 12)This Act provides for the registration of documents, the is-

Title, and the transfer and transmission of registered land.

Land Survey Act (Chapter 188, Volume 12)-

ing of land surveyors, for the manner in which land surveys shall be carried out, and diagrams and plans connected to such surveys prepared. It also provides for the protection of

for the registration and licensing of land surveyors, and for the exercise of disciplinary control over such surveyors.

Town and Country Planning Act (Chapter 283, Volume 16)

-ning authorities, the establishment of a Town and Country Planning Tribunal, the preparation, approval and revocation of development plans, the control of development and sub-division of land, the assessment and payment of compensa-tion in respect of planning decisions, and the preparation,

2.3 Customary law

In the context of land tenure, customary law is applied wherever not doing so would result in undue hardship to the parties involved. Local Courts, 145 as well as Subordinate (Magistrates) Courts, have jurisdiction to apply African cus-tomary law to any matters brought before them as long as such law is not repugnant to natural justice or morality, or incompatible with the provisions of any other written law. 146

145 Section 12(1)(a) of the Local Courts Act, Cap. 29 of the Laws of Zambia.

146 Section 16 of The Subordinate Courts Act, Cap. 28 of the Laws of Zambia.

“Nothing in this Act shall deprive a Subordinate Court of the right to observe and to

customary law, such African customary law not being repugnant to justice, equity orgood conscience, or incompatible, either in terms or by necessary implication, withany written law for the time being in force in Zambia. Such African customary law shall,save where the circumstances, nature or justice of the case shall otherwise require, bedeemed applicable in civil causes and matters where the parties thereto are Africans, and

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In matters concerning real property, Local Courts can only determine cases in which the property at issue is located within their jurisdiction.

Customary land is held under the customs and traditions governing land use and ownership. These differ from place to place and are usually not documented, but there are common features in the various forms of customary tenure. To obtain

-dorsed by the chief and accompanied by his/her handwritten letter to the council of the area in which the land is situated after which the application is sent to the Commissioner of

-

lands before approving the application. 147

2.4 Land policy

approved the draft in principle that same year. Cabinet di-

public consultations. 148

The overall objectives of the land policy are to

Recognise and promote people’s right of access to land and provide land information for the country’s socioeconomic development; and

Improve land delivery.

particularly, but without derogating from their application in other cases, in civil causesand matters relating to marriage under African customary law, and to the tenure andtransfer of real and personal property, and to inheritance and testamentary dispositions,and also in civil causes and matters between Africans and non-Africans, where it shallappear to a Subordinate Court that substantial injustice would be done to any party by astrict adherence to the rules of any law or laws other than African customary law”.

147 Republic of Zambia, (2002), Draft Land Policy. Ministry of Lands, Lusaka.

148 Information provided by Henry Machina, Coordinator of the ZLA, by email of June9 2005.

The policy aims to reserve 30 percent of new leasehold lands for women and persons with special needs. In addition, women and persons with special needs will be allowed to compete for the remaining 70 percent available for all other applicants. This is already being put into effect and, according to the Commissioner of Lands, 149 this means that more than 50 percent of the leasehold titles currently being registered

as there is no community of property in Zambia.

However, this positive intention is ambiguous in that it does not specify how much land should go to women and what proportion “groups with special needs” should acquire. The

document. In reality, land administrators have problems implementing this provision. 150

there can be many applicants for land at the same time. In

149 Interview with the author, June 8 2004.

150 Op. Cit., 69.

• Promote equal opportunity for access to land while recognising customary and

leasehold tenures;

• Redress the gender imbalance and other forms of discrimination in land holdings by

providing security to all land holdings and creating opportunities for development;

• Improve timeliness and accuracy of land information delivery system;

• Improve the capacity of physical planning in order to strengthen the land delivery

system and promote coordination among institutions directly involved in physical

planning;

• Ensure that the covenants and conditions under which land is held are adhered to;

• Promote increased revenue generation from land;

• Support initiatives by local investors and, where appropriate, assist foreign investors

through the provision of land;

• Maintain a clear description of Zambia’s international boundary with its neighbours;

• Encourage people with special needs and other disadvantaged groups to own land;

• Develop and enhance the capacity of the Lands Tribunal to quickly deal with land

dispute matters; and

• Address the pressures and need for land of urban populations.

• Promote equal opportunity for access to land while recognising customary and

leasehold tenures;

• Redress the gender imbalance and other forms of discrimination in land holdings by

providing security to all land holdings and creating opportunities for development;

• Improve timeliness and accuracy of land information delivery system;

• Improve the capacity of physical planning in order to strengthen the land delivery

system and promote coordination among institutions directly involved in physical

planning;

• Ensure that the covenants and conditions under which land is held are adhered to;

• Promote increased revenue generation from land;

• Support initiatives by local investors and, where appropriate, assist foreign investors

through the provision of land;

• Maintain a clear description of Zambia’s international boundary with its neighbours;

• Encourage people with special needs and other disadvantaged groups to own land;

• Develop and enhance the capacity of the Lands Tribunal to quickly deal with land

dispute matters; and

• Address the pressures and need for land of urban populations.

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customary areas it is rare to have many applicants at one go,

there is no clear mechanism to monitor women’s progress of acquiring land. Statistics on land ownership are not only

is compounded by the patriarchal mindsets of government land administrators, which prevents them from allocating 30 percent of advertised land to women. Much of the remaining land is under the control of traditional rulers, most of whom are conservative and see no reason why women should own land, especially if they are married. 151

require owners of land to carry out substantial development on their land within 18 months from the date of alienation.

mobilising funds within the stipulated period. 152

Table 2.2 Draft Land Policy strategies

151 Ibid.

152 Mtamira C. (2002). Presentation during the African Regional Civil SocietyConsultation on Women and Adequate Housing, Nairobi, October 31 2002.

In order to achieve the above objectives, the following strategies are foreseen:

• Link lands information systems at Headquarters to offices at all levels;

• Establish an inter-ministerial Coordinating Committee for the purpose of bringing

together the various physical planning authorities;

• Review the various pieces of legislation that relate to land matters;

• Sensitise the public on procedures and advantages of holding land on title;

• Ensure that lessees pay ground rent commensurate with the zoning of the area;

• Encourage investment especially in rural areas;

• Conduct surveys, and construct beacons through the usage of maps and other techni-

cal records;

• Enforce the Ministry’s policy of ensuring that thirty percent (30 percent) of land which

is demarcated is allocated to women and groups with special needs; and

• Create a conducive environment for the operation of the Lands Tribunal to facilitate

the amicable settlement of land disputes.

In order to achieve the above objectives, the following strategies are foreseen:

• Link lands information systems at Headquarters to offices at all levels;

• Establish an inter-ministerial Coordinating Committee for the purpose of bringing

together the various physical planning authorities;

• Review the various pieces of legislation that relate to land matters;

• Sensitise the public on procedures and advantages of holding land on title;

• Ensure that lessees pay ground rent commensurate with the zoning of the area;

• Encourage investment especially in rural areas;

• Conduct surveys, and construct beacons through the usage of maps and other techni-

cal records;

• Enforce the Ministry’s policy of ensuring that thirty percent (30 percent) of land which

is demarcated is allocated to women and groups with special needs; and

• Create a conducive environment for the operation of the Lands Tribunal to facilitate

the amicable settlement of land disputes.

Institutional framework

and management should stress the need for an integrated

current institutional arrangement places responsibility on the Ministry of Lands to formulate and coordinate the implementation of statutes related to land management in Zambia.

To attain and implement the policy objectives outlined above it is appreciated that some of the statutes governing the functions of the Ministry of Lands require amendment if the land delivery system is to conform to the demand for

-erning land for settlements, agriculture, water, forestry and environment are still fragmented in various policy and legal

-tory) and administered by various ministries, some of which

coordination among the sectors dealing with land and breeds

are unaware of these laws and policies. Thus, there is urgent need to review and revise all land-related statutes with the view of updating and harmonising them.

Policy processIn 2002, after the Ministry of Lands announced that cabinet had approved the draft policy and directed that it be sub-ject to further consultation, a Draft National Land Policy Consultative Project was started. The government had started

could not continue the consultation process. Civil society organisations and cooperating partners expressed concern

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-ciety organisations entered into a joint partnership agreement with the government to combine the limited resources and

GTZ, HIVOS, Oxfam and PACT Zambia) and the Ministry of Lands, the Land Policy Technical Committee achieved the following:

District and community level consultations in all prov-inces of Zambia, with about 3,500 men and women

reports;

and Maria in Eastern province, Radio Phoenix in Lusa-

Collaboration with other concerned organisations;

and

Publishing of newspaper articles.

The target for completion of the consultation process was

in April, and planned to visit four countries in the region for comparative studies. This input would be incorporated ahead of a national conference. At the time of writing it was anticipated that the policy would be sent to cabinet later in 2005.

In the view of the Commissioner of Lands, the consultation process has not been particularly successful, as the groups consulted used the opportunity to register complaints rather

therefore not expected that the draft will change much as a result of this process. The new policy does not propose substantive changes to the land tenure system and merely

-ing it more user friendly. 153

153 Op. Cit., 75.

Gender policySince the attainment of independence in 1964 there has been no explicit national gender policy. However, in an effort to increase the role of women in socioeconomic development,

-cluded a chapter on Women in Development. 154 After 1991, the Zambian government decided to formulate a National Gender Policy with a holistic approach, ensuring that both women and men participate fully and equitably in the devel-opment process.

Under this policy, as mentioned earlier, the government is setting aside 30 percent of all land parcels available for alienation to female applicants, irrespective of their marital status. 155

The gender policy recognises the basic human rights of women, but needs to go a step further in ensuring that wom-en’s rights are respected. It is apparent that Zambian cultural

-ence on their position in society. Women must have effec-tive and independent rights in land – effective rights being rights not just in law, but also in practice – and independent rights being rights that women enjoy in their own capacity, independent of those enjoyed by men. 156 The government department responsible for implementing the policy is the Gender in Development Division under a permanent secre-

2.5 Tenure types

types of tenure in Zambia:

Customary tenure;

154 www.gender.gov.zm

155 The Commissioner of Lands emphasised that this policy is being adhered to andthat there is no bar to joint registration of property under the current land registrationregulations. In practice this means that joint registration in the name of both spousesis very rare. See UN-HABITAT. (2005). Shared Tenure Options for Women: A GlobalOverview.

156 Kangwa, J. (2004). Report of the Proceedings, Oxfam Partners Land WorkshopMarch 29-30 2004, Mindolo Ecumenical Foundation, Kitwe.

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Registered leases under the Lands and Deeds Registry Act [Cap. 185];

Registered leases and occupancy rights under the HSIA;

Unregistered leases; and

Informal rights in illegal informal settlements.

Table 2.3 Formal tenure types

Type Characteristics Legal basisCustomary tenure Obtained through permission of headman or chief.

Matrilineal and matrilocal groups of northern Zambia: husband is granted land rights by in-laws in his wife’s village, which he forfeits upon dissolution of marriage. Matrilineal and patrilocal groups of southern Zambia: any fields acquired by the man upon marriage or prior to it belong to him. The wife has only a right of cultivation and to half share of the standing crops upon marriage dissolution. Patrilineal and patrilocal tribes of eastern Zambia: inheritance on the basis of primogeniture (the eldest son of the senior house in the case of polygamous marriages). Bilateral groups of western Zambia allow inheritance only by the children of the deceased both male and female who get equal shares of the property. Customary land can be converted into leasehold as described below.

Governed by customs and traditions relevant to the particular ethnic grouping

Sections 2 and 7(1) of the Lands Act

Customary Tenure (Conversion) Regulations apply when converting to leasehold tenure

Registered lease for 14 years

Issued on both customary and state land on the basis of a “sketch plan” (requires no cadastral survey before registration). Holder of this lease must develop the land within 14-year period for lease to be renewed. It may be mortgaged and transferred to third parties, but in practice most banks do not accept 14-year leases as basis for mortgage.

Lands and Deeds Registry Act [Cap. 185]

Registered lease for 99 years

Issued on both customary and state land registered in cadastre. A diagram showing an accurate measure of the size of the land parcel and coordinates indicating the precise boundaries of the property must be provided. Mortgages are easier to obtain for this lease. Joint leasehold for spouses is available on request or “optional”.

Lands and Deeds Registry Act [Cap. 185]

Registered lease in statutory housing areas

“Council Certificate of Title” is registered in local council property register. The plan registered by the council must include information on “the area and dimensions of each piece or parcel of land identified by a serial number”. Valid for 99 years. Can be mortgaged and transferred.

Section 4(2) HSIA [Cap. 194]

Registered occupancy licence in improvement areas

A 30-year occupancy right or “occupancy licence” is registered in local property register. The council plan need only indicate the ‘location of each building identified by a serial number’. Can be mortgaged and transferred but in practice most banks do not accept this lease as basis for mortgage.

Section 37(2)(f) HSIA [Cap 194]

Unregistered lease or rental

Regulated by a tenancy contract signed and witnessed by both parties, which need not be a registered document. In practice this form of agreement applies to dwelling houses in the high and medium cost formal residential areas.

Rent Act, 1972

Informal rights in informal settlements

Informal renting and subletting, based on unwritten (verbal) agreement.Illegal subdivision and occupation of land in expanding illegal settlement.

None

Adverse possession or prescription

Not applicable in Zambian land law. None

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Customary TenureCustomary tenure is acquired by obtaining permission from the chief or headman to open up an area of virgin land or by a grant of land from one person to another. The concept of sale of land under Zambian customary law has not been satisfactorily resolved. Since all land is owned by the state, land cannot be sold, whether it is under customary tenure or registered leasehold. What is sold are improvements on land, such as buildings.

The continuing validity of customary tenure was recognised in section 7(1) of the Land Act, which provides that “every piece of land in a customary area which immediately before the commencement of this Act was vested in or held by any person under customary tenure shall continue to be so held and recognised”. As pointed out elsewhere in this chapter, customary rights may be converted into registered leasehold under section 8 of the Land Act read with the Customary

land so converted does not cease to be land in a customary

-

(State Lands and Reserves) Orders, 1928 to 1964 and the Zambia (Trust Land) Orders, 1947 to 1964”. Although both these sets of orders were repealed by section 32(2) of the

customary areas of Zambia.

Leases under the Lands and Deeds Registry ActRegistered leases under the Lands and Deeds Registry Act may be either of 14 years or 99 years duration. 157 The ca-dastral information in respect of the 14-year lease is simpler than that for the 99-year lease, and does not, for example, include an accurate measure of the size of the land parcel, or coordinates indicating the precise boundaries of the property. The holder of a 14-year lease must develop the land by the

types of registered lease may in theory be mortgaged and transferred to third parties for the residual period of the lease. 157 Section 3(6) of the Lands Act provides that the president may not alienate (i.e.grant a lease in respect of) land for longer than 99 years.

when granting mortgages.

The Common Leasehold Schemes Act provides for the issu-

in this form of accommodation to hold title to the separate units in which they lived. In this case, cadastral information is given with respect to the parent parcel of land while the units

Leases and occupancy rights under the Housing (Statutory and Improvement Areas) Act

The HSIA [Cap 194] provides for two types of tenure on

type, in Statutory Housing Areas, is a form of registered leasehold, which differs from the forms registered under the Lands and Deeds Registry Act in that the register is main-tained by the council, i.e. a local property register. According to section 4(2) of the Act, the plan registered by the council must include information on “the area and dimensions of

a 30-year occupancy right. In this case, the council plan need -

rial number” (Section 37(2) (f)). 158

are unwilling to grant loans against the security of these two tenure types. In both cases the land comprising a statutory or

president so that the council holds the head-lease and then issues under-leases to the occupants in its jurisdiction.

158 Secs.7 (3 & 4) and 39(2) of Cap. 194 state that where two or more persons are

of title will be issued. However, the council registrar may, in his absolute discretion, issueseparate titles to each person in respect of their individual share of the property. Inthe case of occupancy licences, not more than one license may be issued to any oneperson.

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Unregistered leasesThe letting of dwelling houses under the provisions of the Rent Act, 1972 is controlled by unregistered leases that set out the rights and obligations of landlord and tenant as private individuals. The relationship between the parties is regulated by a tenancy contract signed and witnessed by both parties, which need not be a registered document. In practice this form of agreement applies to dwelling houses in the high- and medium-cost formal residential areas. There is a time limit attached. Unregistered leases can only be effected for periods less than 12 months. Anything above 12 months must be registered. 159

calculating the maximum rental or “Standard Rent” that may be charged in respect of dwelling houses. 160

Informal rights in illegal settlementsIn the informal areas and illegal settlements, informal renting

form of unwritten (informal) agreements between landlord and tenant to pay an agreed sum on a monthly basis. Many of those who engage in this form of activity either let a room or

renting out where a number of rooms may each be rented to different individuals or family units.

Illegal subdivision and occupation of land occurs mainly where there is an existing illegal settlement that is expanding with the passage of time. 161

2.6 Main institutions involved

the centre of all land matters. The ministry is responsible

159 Nyirenda, W. (2005). Interview with the author March 23 2005.

160 “Standard Rent” refers to the rental agreed between landlord and tenant on thedate the premises are let. Where this is not agreed the court can determine a monthlyrate of one and one-quarter percent of the cost of construction plus market value of theland. Where this information is not available the court may determine the standard rentto be such an amount as it considers fair and reasonable having regard to the standardrent of comparable premises in the neighbourhood.

161 In Kitwe, Chipata Compound provides an example of an illegal settlementwhere the city council has refused permission to upgrade because the settlement isin a low-lying area close to a major river (the Kafue River). The settlement has recentlybeen expanding without authorisation from the council as the residents take it uponthemselves to subdivide adjacent land for new residents coming into the area. Another

for the formulation and coordination of all legislation that is related to land management in the country.

Ministry of LandsThe Ministry of Lands is divided into four departments, three of which deal directly with matters of land administration, namely (a) the Lands Department, (b) the Lands and Deeds Registry and (c) the Survey Department.

The Lands DepartmentUnder Zambian law all land is vested in the president on behalf of the people of Zambia. The president delegates the powers of land administration to the Commissioner

and execute grants and dispositions of land subject to the special and general directions of the minister responsible for land. The Commissioner of Lands is the head of the Lands Department and administers land throughout the country. The Lands Department is divided into three sections: Land Administration, Legal and Estates, and Valuation. The Land Administration Section has administrative responsibility for all land matters in the country in addition to ensuring the proper development of areas planned by the local authorities under the direction of the Department of Physical Planning in the Ministry of Local Government and Housing and the Land Husbandry Section of the Ministry of Agriculture and Cooperatives.

The Lands and Deeds RegistryThe principal function of the Lands and Deeds Registry is to register ownership and real rights in and over immove-able property in order to provide security of title; ensure a complete record; provide easy access to information; ensure speedy registration of all documents lodged; and be cost

transactions and issues title deeds to all land situated in state land areas, as well as customary land that is being converted to statutory leasehold.

typical case is that cited in the case of Chainda Township (Supra note 161) where theadjacent community invaded private farmland that they perceived to have remaineddormant for a long time.

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Over the years a number of consultancy studies have been

the land delivery system. 162

headquarters but, due to inadequate funding, this move has not yielded the intended results. 163 The failure to implement

headquarters with funding from the Swedish government has since been discarded and a new consultant engaged to install a different computer system. At present there is a move to

-load transactions from the headquarters on a monthly basis.

in the nature of the functions of the land registry. Under

under that Act is authorised to sign statutory title deeds. Under a devolved system the registrar could continue to play the role of guardian of the land registry while district registrars dealt with the daily administration of title deeds. This would decongest the Lands Department and bring the issuing of titles closer to the people being served. It would

have titles issued.

Survey Department The Survey Department is responsible for the provision of accurate land information to the general public and to spe-

the provision of surveys and mapping services. The depart-ment is divided into cadastral, survey and mapping branches.

and recording of legal title and addresses issues of boundary disputes. The mapping services branch deals with services re-

162 For example Swedesurvey. (1984). Report on Consultancy Studies in the LandsDepartment; Halcrow Fox and Associates, and Clyde Surveys Limited. (1988). ZambiaLand Delivery System. 1988. Consultancy Report for Ministry of Lands, Water andNatural Resources.

163 In 1995 the minister of lands announced that a regional lands registry would beset up at Ndola to serve the needs of land developers in the Copperbelt, Northwesternand Luapula Provinces. However, at a recent workshop a deputy minister admitted that

lated to the production and revision of national topographic

with the establishment and maintenance of a reliable national

and other surveys.

The Lands TribunalThe Lands Tribunal is a statutory, administrative body under the Ministry of Lands whose objective is to arbitrate in dis-putes arising under the Lands Act.

Office of the vice-president

particularly for retirees and other urban residents in need of land so that they can own land on title and have some means of earning a livelihood. To identify suitable areas and have them designated, planned, demarcated and developed,

Ministry of Lands.

Ministry of Legal AffairsLand holding entails legal procedures that are enshrined in various statutes and covenants. The Ministry of Legal Affairs acts as legal adviser to the Ministry of Lands in the interpretation of land law and the overall management of land matters as well as the drafting of new laws to enable government achieve its objectives in land management.

The Government Valuation Department Through the Government Valuation Department, the Ministry of Local Government and Housing advises the Ministry of Lands (Estates and Valuation Section) on prop-erty valuation and any other matters pertaining to real estate management. The department also utilises property data from the Lands and Deeds Registry of the Ministry of Lands to prepare valuation records.

District councils District councils, under the general direction of the Ministry of Local Government and Housing, have the power to

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control the development of land in their areas. The Local Government Act empowers councils to prohibit and control the use of land and buildings and the erection of buildings in the interest of public health, safety and the proper and orderly development of the council area. Councils have the power to deal with state land, in which they act as agents of the state under the direction of the Commissioner of Lands, and land falling under the HSIA.

Ministry of Agriculture and CooperativesThrough the Land Husbandry Section, the Ministry of Agriculture and Cooperatives is responsible for identifying, planning, demarcating and recommending land for agricul-tural purposes, and monitors land use changes. The ministry plays a crucial role in identifying and opening up suitable land for agricultural use.

Ministry of Commerce, Trade and IndustryThe Investment Centre under the Ministry of Commerce, Trade and Industry cooperates with the Ministry of Lands in identifying suitable land for various developmental projects. The ministry facilitates the speedy registration of companies to assist would-be investors acquire land for various invest-ments.

Ministry of Environment, Natural Resources and TourismThe Ministry of Environment, Natural Resources and Tourism provides advice to the Ministry of Lands on the

resource conservation and protection of the environment. The Zambia Wildlife Authority under the tourism portfolio gives concessions on land in areas demarcated as game

-ing through the Protected Areas Planning Unit, prepares development plans with land information produced by the Ministry of Lands and also regulates the development of tourism enterprise. The ministry assists entrepreneurs in the

land in game management areas.

3 Housing

After independence in 1964, the Zambian government tried to redress the rural-urban imbalance created during the colonial era and employed policies that were aimed at creating better social and economic conditions in both urban and rural areas. 164 Among these were policies to pursue the provision of housing and infrastructure. In its early stages, the UNIP government initiated a development plan system

social, economic and physical development of the country. A total of four development plans were initiated covering the periods 1966-1970, 1972-1976, 1979-1983 and 1989-1993.

The housing policies implemented during this period indi-cate a gradual policy shift from providing complete (con-ventional) low-cost housing to aided self-help schemes and squatter upgrading. This came to be regarded as the most viable route to housing access for the low-income majority of the population. The shift was in recognition of the fact that the unauthorised areas represented social and economic capital that could not simply be brushed aside. 165

The policy of squatter upgrading has, however, been criticised on the basis that, even though the sites and services pro-grammes were welcome innovations, the amount of invest-ment that was actually targeted at the poor could not bring about fundamental changes in the lives of the squatter popu-lations. In 1974, total housing expenditure was approximately K43 million, of which only about K6 million was spent on squatter upgrading under the Second National Development Plan. 166 Substantial funding was, however, allocated towards the development of high-cost housing for the expansion of

167

164 Khonje, G.A.C. (1983). Consumer Acceptability of Low-Cost Housing in Zambia.Unpublished PhD Thesis. University of New South Wales, Australia.

165 Kasongo, B.A. & Tipple A.G. (1990). An Analysis of Policy Towards Squatters inKitwe, Zambia. Third World Planning Review, Vol.12, No.2, pp.147-165.

Rakodi, C. (1989). Self-Help Housing: The Debate and Examples; Upgrading in Lusaka,Zambia and Hyderabad, India. Habitat International, Vol. 13, No.4, pp.5-18.

166 Knauder, S. (1982). Shacks and Mansions: An Analysis of the Integrated HousingPolicy in Zambia. Multimedia Publications. Lusaka.

167 Rakodi, C. (1986). Housing in Lusaka: Policies and Progress. in Williams, G.J.(ed.), Lusaka and its Environs. The Zambia Geographical Association, Handbook Series

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of the third, the number of traditional and squatter units rose from 59.4 percent to 65 percent, while upgraded units dropped from 20.4 percent to 10.3 percent, and sites and services dwellings rose only marginally from 2.6 percent to

Since then, housing provision in the conventional sense has come to a standstill and many poor households strive to cre-ate shelter incrementally from their own savings. Available evidence indicates that many poor urban households who obtained plots of land in the 1970s under the sites and serv-ices schemes are still unable to complete buildings that were, in some cases, begun 30 years ago. 168

Planning and building legislation is based on the Town and Country Planning Act 169 and the Local Government (Urban

The Local Government Act has been amended over the years to allow for changes in the structure of local governance, but the building and drainage regulations have not been changed since independence. These regulations deal with materials

that relate to conventional designs rather than performance standards. As such they specify materials and minimum di-mensions to be used. Any variation in these, even though meeting the performance standards, would be unacceptable

limits the variety of materials and methods that can be used and hinders future research and development of other types of materials and construction that can satisfy the same health and safety requirements. 170

No. 9, Lusaka.

168 Kangwa, J. (2004) A place of one’s own in Kitwe, in Home, R. & Lim, H. Demystifyingthe Mystery of Capital. Glasshouse Publishers, London.

169 Chapter 283, Volume 16 of the Laws of Zambia.

170 Mashamba, M.S. (1997). The Construction Industry in Zambia: Opportunitiesand Constraints under the Structural Adjustment Programme and the Enabling ShelterStrategy. Unpublished PhD Thesis, University of Newcastle Upon Tyne, Newcastle.

Traditional houses in rural areas were never meant to be regulated by these standards. However, all structures in urban areas are required to conform to these standards. The major-ity of those who build homes in informal settlements follow patterns based on the traditional way of house building and, by and large, use materials and methods that conform to traditional standards because they understand these rather than the imported urban standards. This is one area where research in indigenous building materials and methods would help to evolve patterns of housing that conform to people’s needs. As long as they meet the requisite health and safety standards, such materials could be sourced locally and afford-able for the majority. 171


The right to adequate housing is not laid down in the Constitution. Articles 112 (d) and (h) of the Constitution say that the state shall:

Endeavour to provide clean and safe water, adequate medical and health facilities and decent shelter for all

facilities and amenities; and

Strive to provide a clean and healthy environment for all.

to pursue policies aimed at the realisation of decent living conditions and access to affordable medical and health care.

171 The National Housing Policy recognises this as an impediment to progress inrealising appropriate, affordable housing. It states that some public health regulationsand building bylaws and other regulations are inappropriate and do not serve the needsof the majority of the population. This situation has greatly reduced activity in the housingsector. Standards set for both the formal and upgraded informal housing sectors are inpart outdated and counter-productive due to restrictive construction and public healthrequirements; restrictive minimum development clauses; and inappropriate standards that

and technologies. It also indicates that the availability of appropriate and affordablebuilding materials is paramount towards the achievement of adequate housing. Currentconventional construction materials are not readily affordable for reasons of capital-intensive technology in materials production and inappropriate construction technologies;prohibitive prices of building materials caused by high input costs and high transportationcosts; inappropriate standards and bylaws that reduce the range of approved materialsand building technologies; inadequate and uncoordinated research, development and

for small-scale building materials production and procurement.

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Part IX of the Constitution lays down certain directive prin-ciples of state policy. These principles are expressly stated to be non-justiciable, meaning that they do not give rise to rights that can be enforced in court.

The realisation of these policies has greatly been hampered in the last 10 years by the government’s pursuit of liberal economic policies that saw the removal of subsidies and im-position of harsh conditions for the majority of the popula-tion. The removal of publicly subsidised health services and environmental programmes such as anti-malarial spraying and garbage collection has resulted in an environment that is unsafe and a threat to human life. Crowded urban living conditions in poorly constructed houses have given rise to ever-increasing levels of respiratory diseases which, coupled with the HIV/AIDS pandemic, do not lend support to the realisation of these principles.

3.2 Relevant housing legislation

The most relevant laws related to low-income housing are listed below.

Rent Act (Chapter 206, Volume 12)-

mining standard rents, prohibiting the payment of premiums and restricting the right to possession of dwelling-houses, and for other purposes connected to the relationship of landlord and tenant of dwelling -houses.

Housing (Statutory and Improvement Areas) Act (Chapter 194, Volume 12)

declare illegal or informal settlements as improvement areas,

of regularising these settlements so that services (water, sewerage, electricity, roads and drains) can be extended to

licences for owners of parcels of land in these settlements. The Act also provides for the declaration of housing areas falling under the jurisdiction of a local authority as statutory

requisite conditions.

3.3 Housing policy

In 1996 the government launched the National Housing Policy (NHP), which was drawn up after a process of na-tionwide consultation spearheaded by representatives from both the private and public sectors. The consultative process

in a National Conference on Housing in March 1995. The NHP recognises the pressure exerted on infrastructure and social services countrywide by rapid population growth, which is compounded in urban areas by continued migra-tion from rural areas. 172 The policy goal of the NHP is to provide adequate, affordable housing for all income groups in Zambia. 173 However, the formal documentation of the

reforms, which for the most part had already begun to be implemented under the Enabling Shelter Strategy of the early 1990s. 174

Implementation of the National Housing PolicyIn 1998 the cabinet inaugurated the Presidential Housing Initiative (PHI) to spearhead the implementation of the NHP. The PHI raised national expectations and was widely debated. It was seen as the beginning of the end to Zambia’s housing problems.

The PHI was to operate as an implementation unit under the National Housing Authority (NHA) to revive housing

172 According to the NHP the housing backlog (as at 1996) stood at approximately846,000 units, which would require a building rate of 110,000 units over 10 years.

173 To achieve this goal, the NHP put across the following major objectives; allocationof a minimum of 15 percent of the national annual budget to housing to support asustainable housing development programme; provision of serviced land for housingdevelopment and streamlining of the land allocation process; streamlining of buildingstandards, regulations and other controls so that they accord with the capabilities, needsand aspirations of the various sections of the population; encouraging the productionand use of local and affordable building materials; assisting the poor to acquire decentshelter through alleviation of their affordability problems; fostering housing areas thatare functional, healthy, aesthetically pleasant and environmentally friendly, and thepreparation of a national housing implementation strategy.

174 Schlyter, A. (1998). Housing Policy in Zambia: Retrospect and Prospect. HabitatInternational, Vol. 22, No. 3, pp.259-271.

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-ing and drawing in resources from both local and external sources to create a housing revolving fund. 175 In practice, however, the PHI operated as a separate unit with its own management and tender procedures. The cabinet decision

2001 elections the PHI was dissolved, its functions and assets passed on to the NHA.

Impact of PHIThe impact of the PHI can be stated with regard to three of its objectives: 176

To revive the dormant housing construction sector

to be the showpiece of the scheme) was partially de-veloped. Even then this project did not cater for those sectors of the urban population that were most in need of proper housing. Houses designated as the low-cost house type in the scheme were so expensive that mid-dle management civil servants could not afford to buy them;

Upgrading of unplanned settlements – The project achieved nothing in terms of interventions against the proliferation of squatter settlements nor did it provide resources to upgrade existing ones; and

Employment creation – It was expected that construc-tion would create informal and formal income-gener-

of employment created was far less than was expected. One reason was a preference for foreign labour; con-struction labourers were imported from Malaysia at the expense of unemployed Zambians.

175 Makasa, P. (2003). Housing and Urban Development Initiatives as a meanstowards alleviation of Poverty: The Case of the presidential Housing Initiative in Zambia.Paper for Institute of Local Government Studies, Madina, Ghana.

176 Ibid.

3.4 Tenure types

The main tenure type related to housing is rental. The Rent Act 1972 [Cap 206] governs relationships between landlords and tenants with respect to dwelling houses, while the Landlord

between landlords and tenants of business premises.

The land reforms of 1975 abolished the operation of estate agents, but since the enactment of the Lands Act 1995, the estate agency business has been revived. In the high- and medium-cost conventional housing areas, private individuals who own homes and want to put them up for rent can either advertise in the national newspapers or place their homes

a suitable tenant is secured, a tenancy agreement, which is in the form of a contract stipulating the terms and conditions of tenancy, is usually drawn up and signed by the parties to the tenancy. The agreed rentals are payable usually on a quarterly basis or other period agreeable to the parties. Rental protection is afforded under the Rent Act of 1972, which stipulates the maximum rentals that may be charged.

Gender policyThere are no direct references to housing in the gender policy.

3.5 Main institutions

Ministry of Local Government and HousingThe Ministry of Local Government and Housing is charged with the responsibility of assessing land for human settle-ment, industrial and commercial development. Through

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the Department of Physical Planning and respective local authorities, the ministry is responsible for the preparation of structural and regional plans to guide town and rural develop-ment. In addition, city and municipal councils are responsi-ble for recommending applicants for land. Consultations on land matters among chiefs, councils and the ministry ensure that land is not only made available for allocation but also that customary rights of local people are not infringed. The ministry is also responsible for administering the provisions of the HSIA.

The Department of Physical Planning and Housing

strategic development plans. These plans set out the zoning patterns that have to be followed by each council in allocat-

areas may be rezoned to meet these needs but in such cases the law requires that an application be made to the minister

National Planning has also introduced a regional planning section, which is duplicating the functions of the Ministry of Local Government and Housing.

Ministry of Works and Supply

administration and maintenance of all government property throughout the country.

4 Inheritance and Marital Property Rights

Inheritance in Zambia is governed by both customary and statutory law. The inheritance procedures that are followed in a particular case depend upon whether the marriage is a customary law marriage or one contracted under statutory law. Tribal origins also play a crucial role in the way in which estates are administered due to different customs and tradi-tions among the patrilineal, matrilineal and bilateral groups.

Customary law marriageUnder customary law, a marriage may be monogamous or

polygamous, but only the man can contract a polygamous union. Customary marriages are therefore potentially po-

a second wife during the subsistence of the marriage. 177 A marriage under customary law must meet four minimum requirements relating to consent, bride price and puberty of the bride. 178 It can be dissolved either at a family gathering or at a Local Court. 179 -ing a customary marriage leaves this institution open to a lot of abuse and is particularly disadvantageous for women in a society where men traditionally hold power in family life.

Statutory law marriageMarriages contracted under the Marriage Act entail a union between one man and one woman. 180

is evidence of the marriage 181 and only one ground for 182

Marriages contracted under the Act are expected to remain monogamous; if one of the spouses contracts another mar-riage they become guilty of bigamy. In spite of the fact that it is an offence under the Act, some men go on to contract

available remedies. This leaves women married under the law in a vulnerable position even though they have the protection

177 WLSA. (undated). Inheritance in Zambia: Law and Practice.

well as the man’s competent relatives; the consent of the parties to the marriage; thepayment of the bride price; and the bride must have attained puberty.

179 Grounds for divorce can include barrenness, adultery, disrespect of in-laws,pressure from a man’s relatives, laziness, etc.

180 The Marriage Act, Cap 50 of the Laws of Zambia. Under the Marriage Act, oneof the parties to the marriage must give 21 days notice (Section 6) to the registrar inthe district in which the marriage is to take place. After the 21 days and within 3 months

parties has been resident within the district for at least 15 days; that the parties are notless than 21 years old, or if one of the parties is below that age, written consent from

marriage; and that neither of the parties is married under customary law.

181 Section 31.

182 Evidence of “irretrievable breakdown” may include adultery, sexual perversion,cruelty, willful neglect, desertion, voluntary or judicial separation lasting at least twoyears.

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afforded by the law. This is clearly demonstrated in the case of Lillian Mushota v Doreen Mwila alias Mushota. 183

There are a number of safeguards in relation to marriage under the Act. Upon separation and after divorce, a woman married under the Act can claim maintenance, whereas under customary law maintenance can only be claimed after divorce. Upon divorce a woman can claim a share of the marital property, 184 whereas under customary law whether or not a woman gets a share depends upon the applicable customary law.

Most Zambian marriages contracted in urban areas integrate both custom and statutory requirements. 185 The payment of lobola (bride price) is such an integral part of the marriage process that no marriage will be regarded as valid without these customs having been exercised. 186


Art. 16 provides for protection against deprivation of prop-erty, which may only be carried out under an act of parliament providing for payment of adequate compensation.

Art. 11(1) recognises and declares every person in Zambia to be entitled to the fundamental rights and freedoms of the in-dividual, whatever “his sex”. However, the same article states that the entitlement of these rights and freedoms is subject

183 High Court Case No. 2000/HP/0078, ZR. The facts were that Dr. Remmy Mushota(deceased) was married to Lillian Mushota in accordance with the Marriage Act from1983 up to the time of his death. While this statutory marriage was still subsisting, hepurportedly married Doreen Mwila under customary law. The court held that the secondmarriage was invalid from the beginning and that Lillian Mushota was the only lawfulwidow of the deceased.

184 This is well illustrated in the case of Chibwe v Chibwe.

185 This is the same whether one comes from a matrilineal, patrilineal or bilateralgroup.

a maternal uncle and if the family approve they will choose a go-between who ensuresthat the marriage procedures are followed properly. The go-between will inform theparents of the girl who in turn inform the family on her mother’s and father’s sides. If the

place between the man’s go-between and the family representatives from the girl’s sidefocusing on the bride price.

-ent treatment to different persons wholly or mainly to their respective descriptions by race, tribe, sex, place of origin, marital status, political opinions, colour or creed”. However,

non-discrimination clause all laws:

“With respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of

members of a particular race or tribe, of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons.”

-criminate between people in the area of customary law and family law, which in practice mostly affects women.

The United Nations Committee on the Elimination of Discrimination Against Women, which monitors state com-

of Discrimination against Women (CEDAW), has expressed concern at these contradictory provisions. 187

The fourth constitutional review process, meant to develop a people-driven Constitution, is underway. Citizens have submitted proposals on changes they want to see in the Constitution. The women’s movement has also submitted proposals for amendment. One such submission proposes

broadening the scope of the non-discrimination clause and removing the derogation clauses under it. The “Minimum Standard Document for Women and Children’s Rights” was developed by women’s organisations and used as the basis for the submissions. This document borrowed from some of the more progressive constitutions in the region, such as those of Namibia, Malawi and South Africa. Most submissions relate

-rosanct and can only be opened by referendum. 188 So far the government has refused to hold a referendum on account of

187 CEDAW, (2000). Concluding Observations.

188 Art. 79(3) and (4) of the Constitution.

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the cost of such an exercise. There is a lot of uncertainty and controversy around the review process and there are fears that this article may not be amended. 189 Various civil society bodies oppose the current process, advocating for a broader based process.

4.2 Legislation related to inheritance rights

The Intestate Succession Act No. 5 of 1989 This Act provides for the administration of deceased estates. It does not apply to land under customary tenure, property that belongs to a chieftainship or family property. Land under customary tenure and chieftainship property is administered according to the customs and traditions of the particular eth-nic or tribal grouping. The Act provides for the appointment of administrators in Section 15(1):

(1) In a case where a person has died without leaving a will (intestate) the court may grant letters of administration to any interested person upon application to the court to do so;

(2) If more than one person applies for letters of adminis-tration, the court can grant letters of administration to any one or more of them. Under such circumstances the court will use its discretion in determining which of the parties has the greater and more immediate in-terest in the estate; and

(3) In cases where no one applies for letters of administra-tion, the Administrator General or a creditor of the deceased may be granted letters of administration.

189 McMillan, J. E-mail communication with the author, May 30 and June 2 2005.

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Table 4.1 Order of succession according to the Intestate Succession Act

Order of succession Variants

1: (Sec 5(1)):Surviving spouse receives 20 percent; where there is more than one widow, this is distributed in proportion to the duration of their respective marriages to the deceased and the widow’s contribution to the deceased’s property; natural children6 receive 50 percent in proportion to age and educational needs or both; parents of the deceased receive 20 percent; dependants7 receive 10 percent in equal shares.

Section 7(a): If there are no parents, the proportion of the estate, which the parents would have inherited is divided equally between the surviving spouse and children on the one hand and the dependants on the other.

2: (Section 6(a)): If there is no spouse:he spouse’s portion goes to the children in proportion to age or educational needs or both.

Section 7(b): If there are no children, the children’s share of the estate is divided between the surviving spouse, the parents of the deceased and the dependants in the following proportions;

* 20 percent to the widow* 20 percent to the parents* 10 percent to the dependants

3: (Section 6(b)): If there is no spouse or children, the aggregate portion that would have been inherited by the spouse and children goes to the parents of the deceased in equal shares.

Section 7(c): If there is a spouse, children, parents but no dependants, the dependant’s portion is inherited by the parents in equal shares.

4: (Section 6(c)): If there is no spouse, children or parents, the estate is divided among the dependants in equal shares.

Section 7(d): If there is a spouse and dependants but no children or parents, the children’s and parent’s share of the estate goes to:

* The surviving spouse (20 percent)* The dependants (10 percent)

5: (Section 6(d)): If there is no spouse, children, parents, or dependants, the estate is divided among the near relatives in equal shares.

Section 7(e): If there is a spouse and children but no parents or dependants, the parents and dependants portion is distributed equally between the surviving spouse and children.

6: (Art. 1014): If there is no spouse, children, parents, dependants or near relatives, the estate devolves upon the State.

Section 7(f): If there is a spouse but no children, parents or dependants, the children’s, parents and dependants portion is distributed equally between the surviving spouse and near relatives.

chattels of the deceased. 190 Generally, where land or a house is held under a state lease, the surviving spouse can stay in the matrimonial home until remarriage or death. S/he therefore does not inherit the land or house, and cannot transfer, will or sell the property, as s/he only holds a limited interest. Where there is more than one surviving spouse or child or both they

190 Where the intestate in the case of a monogamous marriage is survived by a spouse or child or both, the spouse or child or both of them, as the case may be, shall be entitledequally and absolutely to the personal chattels of the intestate; where the estate includes a house the surviving spouse or child or both, shall be entitled to that house; provided thatwhere there is more than one surviving spouse or child or both they shall hold the house as tenants in common; and the surviving spouse shall have a life interest in that house whichshall determine upon that spouse’s remarriage; where the estate includes more than one house the surviving spouse or child or both shall determine which of the houses shall devolveupon them and the remainder shall form part of the estate; where the intestate is survived by more than one widow or a child from any of them, then, each widow or her child or bothof them shall be entitled absolutely to the homestead property of the intestate; and in equal shares to the common property of the intestate.

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shall hold the house as tenants in common. 191 While the Act does not apply to land under customary tenure or property that belongs to a chieftainship as well as family property, it

provision.

property and certain sections of the Act actually operate

into account that this house might have been a matrimonial home to which the wife contributed. The home is seen as the deceased husband’s estate because it was registered in his name. The widow only gets a life interest, which she has to share in the case of her husband having more wives. In contrast, a male surviving spouse could remain in the house, even if he remarries.

The HIV/AIDS pandemic has further deteriorated the situ-ation for women: in practice, widows suffering from HIV/AIDS are told they should leave the land, since they will die soon anyway. When women try to have land registered in their own name, they face a lot of pressure from the com-munity and the family not to do so. 192

In deciding upon who will be the administrator of the prop-erty, families usually sit together after a funeral in a meeting

Isambo lya mfwa”, which literally translated means “a discussion of the death”. This meeting discusses all the events leading up to the death of the deceased and what should happen to the family left behind. It is in this meeting that a decision is made on who should be appointed as administrator of the estate. Since there is an option for the appointment of more than one person as administrator, the law would be more useful at this point if it stipulated that the surviving spouse should in all cases be

joint administratorship with another family member should the family so wish. This would protect many poor widows

191 Section 9 of the Intestate Succession Act, Chapter 59.

192 Op. cit., 86.

who tend to get left out, especially where there are high-value assets to be administered. The formal appointment of an administrator is effected by a court order after the family has reached agreement. In most cases the court justices will require the presence of the widow to testify agreement to the appointment of the administrator. Where this is not

they have resolved the issue satisfactorily. 193

The Wills and Administration of Testate Estates Act (Chapter 60, Volume 5)

to land held under customary law. This Act allows any adult of sound mind to decide what will happen to their property after their death by writing a will. The power of the testator is not absolute under the Act as courts can vary the contents of a will if it is felt that these are unreasonable in their failure

194 A depend-

deceased, while a “child” includes a child born out of wed-

unions. 195 Section 65 prohibits the “intermeddling” of property with those entitled to the property as determined by the courts or by a will. An unauthorised person who deprives an entitled person of his/her property or any part of it has

This clause could be used against the common practice of property grabbing by in-laws, although it only applies to land other than customary land.

The Administrator General’s Act (Chapter 58, Volume 5)

Administrator General (AG) who is empowered to administer an estate in the absence of an executor or administrator. 196

In addition the AG can appoint district secretaries or town

193 Mwansa. Interview with the author, March 15 2005.

194 In Re Estate of Mwananshiku, the testator excluded his second wife after orallytelling her that she was no longer his wife during an argument. She contested the will andthe court ruled in her favour ordering that she be given something from the estate.

195 Wills and Administration of Testates Act, No. 6 of 1989, Section 3.

196 Administrator-Generals Act, Cap 58 of the Laws of Zambia.

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relation to a deceased’s estate. 197 The AG has no mandate to act where the concerned family appoints an administrator.

4.3 Legislation related to marital property rights

Under the English Law (Extent of Application) Act, the cur-rent English laws on divorce and property adjustment apply to Zambia. The relevant statutes include the Married Women’s Property Act of 1882, the Matrimonial Proceedings and Property Act of 1970 and the Matrimonial Causes Acts of 1969 and 1973. 198 These all refer to “Christian” or monoga-mous marriages. However, while these laws have been further

in Zambia. The Matrimonial Causes Act of 1973, for example, -

tee of experts under the Law Development Commission in 2004 in order to revise this Act. In the meantime Zambian courts have been persuaded by English judgements based on the English amended Matrimonial Causes Act. It is not yet

of marriage laws.

The Marriage Act (cap. 50) does not contain provisions re-lated to marital property regimes such as in or out of commu-nity of property. The Matrimonial Proceedings and Property Act of 1970, which applies to persons married under the

by either or both parties with the intention that they should be continuing provision for them and their children during

capital items such as the matrimonial home, the furniture in it and other revenue producing assets, which may be owned by the family. The current position of the courts is that capital assets have to be divided between the parties while revenue-producing assets have to be allocated to both parties. In a

197 Section 4.

198 Law Association of Zambia. (2001). Making the Law Work: A Collection of Court Judgements. National Legal Aid Clinic for Women.

for many years, the court can conclude that the matrimonial home was acquired and maintained by the joint effort of both husband and wife 199.Thus, property belonging to either party and acquired during the marriage is treated as joint property, which is how women married under the Marriage Act may be awarded property in their husband’s names.

to contract marriage under the Act. Property acquired prior to the marriage or inherited may not be treated as joint property, although this is subject to an order of the court under the Matrimonial Causes Act. This Act, also solely applicable to persons married under the Marriage Act, contains provisions on maintenance and property adjustments upon marriage dissolution. Section 25 provides that the court in adjustment orders shall have regard to all circumstances, including the standard of living enjoyed by the family before dissolution, age of parties and duration of marriage, as well as contri-butions made by parties to welfare of the family, including

for the family. On the basis of this section the courts have attempted to use a 50-50 rule, where the property is shared as equally as possible. In practice, the courts’ discretion in such matters has meant different interpretations of what 50 percent constitutes. 200

The committee of experts that is to revise the Matrimonial

law should explicitly provide for community of property. 201

matrimonial property cases to court. The Matrimonial Causes

199 A case that illustrates this is Richard J.C. Musonda v Florence C. Musonda inwhich the husband sued for divorce, which was duly granted. The family had extensive

wife. The court granted the appeal and held that all family assets that were bought duringthe subsistence of the marriage (i.e., furniture and other household items) by either of theparties be shared equally; that a set of chicken runs on the farm where the matrimonialhome was located be allocated to the husband and three-eighths of the value of the homebe allocated to the wife

200 Op. cit., 123.

201 Universal joint tenure means that all property brought into or acquired in marriagein any manner is jointly held. Presumed joint tenure means that there is a presumption thata married couple holds the property acquired during marriage jointly, but either spousecan prove that certain property is individually held (usually property that is inherited orgifted to one of the spouses only).

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Act, however, leaves a lot of issues to the discretion of the judges. The judges tend to accept the arguments brought forward against women’s attempts to obtain matrimonial property. In most of the cases, where women did go to court, they were unsuccessful because the judges:

Deemed the value of the contribution of women to be

of children or childcare;

Ruled that customary law did not give rights to women to own homes;

Ruled that the wife had misbehaved and did not de-serve any share of the property or home;

Considered that the wife was still young and could still get married again and earn a living; and

Considered that the marriage had not subsisted long enough for the wife to be given anything. In one case, nine years was seen as not long enough.

In summary, a lot of the judges in these cases completely ignored the women’s contribution to the matrimonial prop-erty. In various court cases, it even appeared that people had

impractical.

pressure from families and the church all act against women -

sist all that pressure have to face the long and tedious legal systems – most women are not willing or able to pursue the cases through the courts. The prevailing societal attitude is that there must be something wrong with a woman who pur-sues her case through court; she is ostracised. Many women therefore prefer to drop such cases. 202

4.4 Customary law

Customary law is mainly tribal in origin and covers many different systems. The majority of Zambians, including

202 Op. cit., 86.

those living in urban areas, still conduct many family-related activities in accordance with customary law. However, this should not be understood to mean that there is a common set of rules that apply in all the regions of the country. Even within the different tribal areas there are local variations, but by and large the broad principles remain similar throughout the country. 203

Under customary law, women’s assigned roles in society have largely contributed to a negative perception of their position

204 At almost every stage in their lives they are under the guardianship of a male person

– be it their fathers, brothers, uncles, husbands or sons. 205

Under custom women are discriminated against in terms of accessing land, as land rights are normally given to the head of the family, who is always a man. Customary law does not recognise women as heads of households.

Inheritance practices in different ethnic groupsInheritance under customary law depends upon the particular tribal group. The 73 different ethnic groups in Zambia can be

and patrilocal groups; patrilineal and patrilocal groups and bilateral groups. 206

The matrilineal and matrilocal groups

Province, where the man moves to his wife’s home. This

203 Ndulo, M. (1987). Mining Rights in Zambia. Kenneth Kaunda Foundation, Lusaka.

204 Chuulu, M. B. (2001). Traditions, Culture and Customary Law Relating to Rights of Women and Children. Paper presented at Sensitization Workshop on Gender-BasedViolence. Mulungushi International Conference Centre, Lusaka. December 6-7 2001.

205 Kabazo, C. (2004). Why customary law should be gender-friendly. by Kachingwe,K. Times of Zambia. June 10, page 6.

206 Op. cit., 111. The matrilineal and matrilocal groups trace descent through thefemale line. The residence pattern practiced requires the newly married couple to movein or near the bride’s mother’s house (uxorilocal marriage). The matrilineal and patrilocalgroups also trace descent through the female line. The residence pattern practicedrequires the newly married couple to move in with or near the husband’s father’s house(virilocal marriage). The patrilineal and patrilocal groups trace descent through themale line. The residence pattern practiced is the same as in the previous category. Thebilateral group traces descent through both male and female lines and residence can bewith either kin line.

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this system, the man acquired rights over land in his wife’s village by way of a grant from the in-laws and on dissolution of the marriage the man forfeited his rights. His rights were derived from the wife and depended on the subsistence of the marriage. With regard to succession, descent among the

the brothers, sisters, nephews and nieces who are entitled to a share in the deceased’s estate.

The matrilineal and patrilocal groupsIn this system, which is generally found among the Tonga of Southern Province, bride price was generally paid in the form of cattle, with the woman moving to the husband’s vil-

may have been acquired upon marriage or prior to it, belong to the man. The woman has only a right of cultivation. On cessation or dissolution of the marriage, the wife forfeits her right of cultivation. In the event of divorce she is only enti-tled to a half share of the crops. With regard to succession, the Tonga practice levirate succession and priority is given to the brothers and nephews of the deceased. The successor assumes responsibility for the children of the deceased and the widow becomes his wife. 207

Patrilineal and patrilocal groupThe Ngoni of Eastern Province provide the best example of this system of tribal inheritance practice. Under Ngoni cus-tomary law, inheritance is on the basis of primogeniture. 208

of customary marriage and the patrilineal nature of Ngoni society. 209 Under Ngoni custom the choice of an heir rests

207 Op. cit., 111.

208 Mvunga, M.P. (1980). Land Law and Policy in Zambia. University of Zambia Institutefor African Studies, Lusaka. Inheritance by the eldest son of the senior house. Seniorityof a house is determined by the sequence in time in which different wives get married to

following wives create junior houses in their order according to the respective dates ofmarriage. It is the eldest son of the senior house, and not the eldest son of a father, whoinherits the father’s estate.

209 Ibid. In this context, primogeniture means inheritance of a man’s estate by hiseldest son, where all his children are born of one and the same wife; inheritance by theeldest son of the senior house, where children are born of various wives in a polygamousmarriage; and inheritance by the eldest male person who by virtue of belonging to a classof paternal relatives can be described as the deceased’s nearest blood relative.

with the family elders and almost automatically this will be the eldest sane adult male child. 210

Bilateral groupThis system is found among the Lozi of western Zambia. Inheritors under Lozi customary law are children of the deceased, both male and female, who get equal shares of the property. Where there are no children, the brothers of the deceased inherit equally. The widow does not have the right of inheritance in as far as her husband’s land is concerned.

share of the crops.

4.5 Administration of estates (inheritance procedures)

in the process of distributing a deceased’s estate. Under the Intestate Succession Act the family must appoint an admin-istrator who is authorised only to distribute the estate in accordance with the rules laid down by the Act. Land held under customary tenure, chieftainship and family property 211

is excluded as it has to be dealt with under customary law.

In practice, most ethnic groups hold a family council to ap-point an administrator following the burial of the deceased. In some cases this can happen on the same day or the day after the burial. This council is usually composed of all family members on both sides who were present at the funeral. The appointment of the administrator in the family council is fol-

210 Ibid. Mvunga cites a number of cases which illustrate this principle among theNgoni:

In Re estate of Mekelani Mphanza (Mpezeni Local Court, ‘B’ Grade Case No. 50 of 1975,

was appointed administrator.

In Re estate Penya Daka the only surviving son of the deceased was appointedadministrator.

In Re estate of Jeffrey Msoni (Nzamane Old Local Court, ‘B’ Grade, Case No. 41 of 1973,unreported), a younger son was chosen over an elder daughter.

All these cases illustrate the preference for male issue even over a senior survivingdaughter and indicate that in many cases the traditional bias against females is verydeeply rooted and thus contributes to the negative way in which women in general aretreated but even more so the widows.

211 Family property may be property that is inherited from an ancestor or acquiredjointly by members of the same family. See the case of Henry Mpanjilwa Siwale and 6 others V Ntapalila Siwale.

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lowed by endorsement through the issuing of a court order.

her categorically if she approves the appointment. 212 Once this is done the administrator’s duties are to pay the debts and funeral expenses and estate duty if payable and to effect distribution of the estate in accordance with the rights of the persons interested in the estate under the Act. 213

According to the Act, the role of the administrator should end with the distribution of the estate. However, this role is frequently misunderstood because it is confused with the customary concept of a successor. 214 Under customary law

under statutory law the meaning of administrator is entirely different. 215

Under the Wills and Administration of Testate Estates Act

has granted probate (an order authorising the execution of the will). Probate can only be granted after the will has been proved to be valid. After this the person named as executor has authority to deal with the estate. Where an executor is not named the court will appoint one. His/her responsibility is to pay all debts, taxes and funeral expenses, and distribute the balance of the estate in accordance with the will.

Local Courts hear cases related to the rights of people mar-ried under customary law in respect of property, inheritance, marriage and divorce. Although statutory law is supposed

212 Op. cit., 111. This does not guarantee the widow’s approval, however. The WLSAresearch (pg. 218) quotes a case where the family meeting appointed an administratorwithout the widow being present. When she was taken to court and asked if she approvedshe said yes, but when interviewed later she said: “I am not happy with that man beingappointed as administrator because it means he will be in charge of everything. I said

‘yes’ because I was confused by the proceedings and didn’t know what was going on. Ihave never been in court before. I don’t know. I was somehow scared.”

213 Ibid.

214 Op. cit., 144. According to Mvunga, the problem lies in the interplay betweencustomary and statutory law at the appointment or selection process. Under customarylaw the person selected is literally understood to be the heir while the court designatesthem the role of an administrator.

215 The WLSA interviewed an administrator who is quoted as saying about the widow

by the fact that the customary concept of successor meant that he was inheriting thewidow as well as the property of the deceased.

discriminate against women, especially in inheritance rights cases. Local Courts often do not apply the percentages man-dated by the Intestate Succession Act in distributing estates, leaving women with nothing. 216

5 Poverty Reduction Strategy Paper (PRSP)

The Zambian PRSP gives a fairly comprehensive picture of the historical roots of poverty in Zambia, reviews the status quo and provides a good idea of where the government’s priorities lie in terms of poverty alleviation. Urban land, rural land and gender emerge as clear priorities for poverty allevia-tion.

The PRSP states that many people will continue to depend upon the informal sector for their livelihoods and measures should be put in place to help them achieve this. These

and technological information, and the provision of infra-structure such as industrial estates. Access to physical assets that improve the productivity of land are a prerequisite to the involvement of the poor in income-generating activities, and the PRSP recognises the dominance of agriculture as a livelihood activity for the poor. In this respect their access to secure land is recognised as a critical priority.

The PRSP states that unavailability of urban land as an asset for the poor reduces their ability to access capital for income-generating activities. According to the paper, this arises from the fact that many informal areas are illegal, and the inhabit-ants do not have titles to their dwellings.

and in concert with this, the government has been “streamlin-

216 Human Rights Watch. (2002). Suffering in Silence, The Links Between Human Rights Abuses and HIV Transmission to Girls in Zambia, p. 59.

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of liberalisation” 217 (p. 54). Efforts geared towards achieving this have revolved around granting leasehold tenure.

-ground by highlighting that poverty affects women acutely,

employment and their higher vulnerability to contracting HIV/AIDS. Gendered aspects of land reform are also given explicit attention. It is noted that women have limited access

more vulnerable to poverty. To remedy this, the PRSP repeats the commitment in the National Gender Policy to “reserve 30 percent of all allocations of land for women applicants” (p. 53).

Urban land receives scant attention in the PRSP. The urban poor are mentioned only by way of passing reference and,

generation/businesses, for instance the creation of credit

Rural land issues dominate the PRSP, and it provides a useful indicator of the general attitude on land policy. The policy

creating an enabling legal and policy environment through formal titling to land, ensuring predictability in commercial transactions and guaranteeing property rights, it is envis-aged that investors will be lured into large-scale commercial

and addressed, including related aspects of inheritance laws,

within the stipulated time frame. Crucial to gendered poverty alleviation, however, is implementation, and in the context of pronouncements that are very private-sector oriented, this will remain a challenge.

217 Republic of Zambia. (2002). Poverty Reduction Strategy Paper. http://poverty.

dealt with in its own right. Considering that current estimates put overall poverty at 80 percent of the population, the question of shelter is crucial for the poorest sector of the population. Deliberate strategies aimed at improving shelter access to the poor or the quality of shelter should have been included in the paper.

6 Land Management Systems

6.1 Introduction

Zambia employs a system of deeds registration that has been

transfers affecting private and state land must be registered in the Lands and Deeds Registry and cadastral surveys are

-trol of the state. 218 Cadastral surveys on traditional land are

leasehold tenure.

Every document relating to land presented for registration -

ciently detailed plan that has been approved by the Surveyor General. Section 25(1) of the Land Survey Act is framed in such a way that it “ousts the jurisdiction of the court” 219 in

established cannot be brought into question by any court of law. The courts cannot inquire into the legitimacy of the plac-ing of the beacons once the Surveyor General has approved

system has been largely responsible for the absence of litiga-tion relating to boundary disputes.

The Land Survey Act does provide for the settling of boundary disputes and the issuing and signing of boundary

boundary disputes are quite rare, which may be interpreted

218 Dale, P.F. (1976). Cadastral Surveys within the Commonwealth. HMSO, London.

219 Op. cit., 93.

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as a sign of how well the system operates. Unfortunately, the strict application of the cadastral survey system has been at the expense of the overall mapping of the country. 220

intermediate form of title. The requirement to examine every survey before approval of the diagrams gives rise to a lengthy

The status of cadastral surveying in Zambia has been in need of revision for some time. However, attempts to do this have

the system, resulting in a shortage of licensed surveyors.

Figure 6.1 Organogram of Ministry of Lands

220 Op. cit., 154.

Human Resources and

Administration DepartmentSurvey DepartmentLands and Deeds Registry

Ministry of Lands

Lands Department

Lands Administration

Legal

Estates and

Valuation SectionSurvey Services

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Figure 6.2 Institutional framework for land management in Zambia

Ministry of Local Government and Housing

Coordinates preparation

of structure and regional

plans.

Ministry of Works and Supply

Administration and

maintenance of

government property

Ministry of Agriculture and

Cooperatives

Land Husbandry Section

and recommends land for

agricultural purposes

Ministry of Lands

Responsible to formulate

National Land Policy and

coordinate all legislation

and matters related to

land management

Lands Tribunal

Arbitrates in disputes

arising under the Lands Act;

Commissioner of Lands

represented by Legal Section

of Lands Department

Ministry of Commerce, Trade

and Industry

Investment Centre

coordinates with MoL for

land required for large

development projects

Vice-president’s

Department of Resettlement

for resettlement schemes

Ministry of Legal Affairs

Provides legal advice

and services required in

formulating legislation

related to land matters

Ministry of Environment,

Natural Resourcesand Tourism

Coordinates land

required for tour-

ism/conservation

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Procedures governing land are still fragmented in various

(customary and statutory), administered by various minis-

coordination among the sectors dealing with land and breeds

The absence of a national land audit, indicating to what extent customary land has been privatised and what percent-age of customary land has been converted into state land

overview for those dealing with land.

6.2 Informal settlements and the formal system

funding while the government put in place the legal frame-

the cost of individual surveys would be too expensive for the owners. Under this system, former squatter areas can be declared as improvement areas while conventional housing and site and service areas can be declared as statutory hous-ing areas.

In the case of improvement areas, the change process re-quires that the area be rezoned under the terms of the Town and Country Planning Act, Cap. 283 of the Laws of Zambia. In such a case, the local authority concerned prepares a lay-out plan that shows the extent of the area being rezoned as an “Improvement Area”. This is submitted to the Surveyor General for approval. Once approved, it is declared an im-provement area and the council is granted a head lease or

and can have services and infrastructure extended to it. This

provides the means by which secure tenure can be conferred upon residents of poorer peri-urban areas. The requirements of the Land Survey and Lands and Deeds Registry Acts do not apply to Statutory and Improvement Areas. However, this is simply an intermediate stage since individual plot holders must build a permanent structure with the approval of the planning authority before they can apply for the issue

“Improvement Area” status enables local authorities to facilitate the process of upgrading so that roads, water and other infrastructure can be incorporated in the planning for the area. Once this requirement is complied with, residents are issued with 30-year occupancy licences while the area goes though the process of upgrading. These are later replaced by

as if the landowner were obtaining a direct lease of the land from the state.

Under the HSIA, the Kitwe city council had issued 10,348

accept these documents as security for mortgages although the number of mortgages created since the sale of council houses began in 1996 has been quite low. 221 This may be due to the fact that many residents who have lost jobs due to the privatisation of the mines and other industry are unable

should be an account holder with the building society for at least six months.

on a land tenure initiative in December 2000. 222 A pilot study has been conducted in Chaisa, an informal settlement

project consisted of three components: communication and

221 Manager, ZNBS. Interview with the author, 2002.

222 Lusaka City Council/Swedesurvey Land Tenure Initiative, (2003). Urban Land Management programme, Final Report, October 2003.

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them aware of the importance of secure tenure; surveying and mapping to establish a geographic database of property

City Council Deeds Registry and records system. The project went on to carry out a systematic adjudication of the whole area and residents have now been issued with occupancy licenses. At the close of the project in October 2003, about 1,040 occupancy licences had been issued, which represents 40 percent of the occupancy rights holders. Out of these only two cases were of joint ownership while it was found that 380 women (14 percent) held occupancy rights to houses.

The successful implementation of this pilot project indicates that it is possible to achieve good results if the modalities for issuing occupancy licences are put in place and the staff is trained adequately in how to handle the procedures. The development of training manuals from this pilot should be a logical next step so that the process can be replicated in

the country.

Land allocation procedures

and serviced. However, due to various constraints, it is not possible for these conditions to be met at all times. Two routes are followed depending on the type of land that is

-veyed, the applications received by a local authority go on

Members of the public applying for plots are generally

They are also expected to attach supporting documents, such

applied for. The required forms are Annexure A for all types of land and Annexure C for agricultural land.

In the past, councils interviewed applicants, but this pro-cedure has been discontinued because it proved too time

consuming. Once application forms are received, a public

sent to the full council meeting. The full council then ap-

committee. Three applicants are usually recommended for each plot available and these names are then forwarded to the Commissioner of Lands with a copy of the relevant ex-

applicants is applied by giving priority to their applications. -

ity, they must have a letter of offer from the Commissioner of Lands. Once this is obtained, the applicant has six months within which to put up a slab on their plot and 18 months in which to complete the building.

hence cut out the poor and unemployed from contesting for these plots. There needs to be parallel provision with simpli-

applicants. The absence of such a mechanism is one of the possible causes of the many land invasions that give rise to the informal areas surrounding many of Zambia’s major towns. 223

State land

normally prepares a letter of offer after the recommendation of at least three applicants from the relevant local authority. In respect of allocations on state land, councils only act as agents of the central government. The length of lease on state land is 99 years.

223 An administrative circular was issued in 1985 setting out the general policyguidelines regarding the procedure to be followed by all councils in the administrationand allocation of land. It sets out guidelines on preparation of layout plans, allocationof urban and agricultural land, land in customary areas and allocation of land to non-Zambians. The circular has not been updated since it was issued.

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Customary land Land allocation procedures on customary land have been dealt with in the Customary Law section.

Statutory housing areas Under provisions of the HSIA, councils are given a head lease from the Commissioner of Lands and they in turn have the right to allocate plots to applicants by giving a 100-year lease. Only one plot can be allocated to any one individual in a statutory housing area so as to avoid the danger of down-

large plot, thus depriving the poor of access to land.

Problems and constraints The problems and constraints faced by councils in land aliena-

224 The servicing of new residential developments on virgin land is particularly problematic. A service charge is levied on all newly acquired plots before the owners can begin to develop the land. This charge is supposed to be equivalent to the cost incurred by the council in providing roads, drainage, street lighting, water and sanitation services. In theory, the services should be delivered

practice is that councils allocate plots and once owners have paid the service charge and any other levies due to the coun-cil, they are allowed to begin building. Quite frequently the services follow at a later stage and in most cases not all the services enumerated above are actually provided. Where they are provided, they are frequently at a lower standard than expected. More research in the collection and management of service charges is necessary to understand how councils use these funds nationwide.

224 Mundia, I. (2004). Current Land Alienation Procedures at Kitwe City Council.Presentation by Director of Legal Services, Kitwe City Council. Also the Times of Zambiaof June 14 2004 reported that two councillors from the Lusaka City Council had beenarrested in connection with the illegal allocation of plots near a railway line in Lusaka.

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Figure 6.3 Land allocation procedures

Recommendation to Commissioner of lands for consideration by Lands Committee

Is District Council planning authority?Selection by

District CouncilDistrict Council invites applications

Offer of lease and statement of payment due prepared by Lands Department

Commissioner of Lands ex-amines plans as to the avail-ability of land planned for

Preparation of layout plans by appropriate planning authority or District Council

Numbering and survey of stands by govern-ment/private surveyor

Offer letters drafted by Commissioner and copies sent to District Council

Applicant receives planning approval, Lands Department

permission

Planning authority considers application as to location and building regulations

Submissionof planning

application

Successful applicant

planning permission

Lands Dept. receives ac-ceptance and

plan or diagram

Survey Dept.

plan for 14-year lease and diagram for 99-year lease

In the absence of a diagram

Are survey instructions for government or private surveyor?

instructions to

Lease documents received by applicant, signed and returned to Commissioner of Lands

Lands Dept. prepares lease document for 14 or 99 years

Lands Department sends signed lease document to Deeds Registry for registration and

Survey lodged

and approval

Source: Mulwanda, M. & Mutale, E. (1994).

Commissioner of minimum build-ing clause to be inserted in lease

Yes

Applicant accepts and pays fees due

Sketch plan to owner for own arrangement of survey

Private

No

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6.3 Dispute settlement mechanisms

The 1995 Lands Act established a Lands Tribunal as a cheap

any awards and decisions in any dispute relating to land under the Act.

With regard to appearances before the tribunal the Act states that “a person appearing as a party before the Tribunal may appear in person or through a legal practitioner at his own expense”. 225

On the face of it, the provision that people can represent themselves is a progressive step. However, the forms and procedures required for appearance before the tribunal are so technical that they defeat the purpose of this provision. Section 23(5) intends that a petitioner can come to the tribu-nal and give oral or hearsay evidence. Again this is an attempt to minimise the technical requirements that apply to giving

also appears not to have succeeded. 226

-dle-course justice system has been destroyed by the Act itself. As pointed out, the idea was to have a cheap, simple and ef-

-tice, the tribunal is too technical to allow easy participation by laypersons. Consequently, many people that have disputes feel too intimidated to appear before the tribunal. 227

upon all to bring their cases to the capital. To assist the less -

into local land tribunals and allow them to operate on behalf

225 Section 25 of the Land Act.

226 Op. cit., 33. On page 8, “Section 23 (5) provides that ‘the Tribunal shall not bebound by the rules of evidence applied in civil matters’. But practice shows that the

be entertained.”

227 Ibid.

of the poorer members of society. This will ensure that

use at minimal cost. 228 Appeals against decisions of the Lands Tribunal go to the Supreme Court where parties need legal representation.

6.4 Relevant jurisprudence

Rosemary Chibwe v Austin Chibwe – Marital Property 229

Austin Chibwe sued Rosemary Chibwe for divorce before the Local Court in Mufulira under customary law, alleging among other things unreasonable behaviour and adultery

divorce on the said grounds. However, Mrs. Chibwe appealed to the Magistrates Court on the grounds that the Local Court had misdirected itself in dissolving the marriage on unestab-lished grounds and not applying their minds to the question of maintenance and property adjustment of the property acquired during the subsistence of the marriage. She also al-leged that the Local Court justices were prejudiced in favour of her husband in handling the case before them.

The magistrate heard the evidence and sat with assessors in Ushi customary law, under which the parties had gotten

the decision of the Local Court. Mrs. Chibwe then appealed to the High Court.

When the case was heard in the High Court, the High Court Commissioner considered Ushi customary law and ruled that Mr. Chibwe should pay his former wife a lump sum of K10 million with simple interest of 10 percent from the date that judgement was delivered to dissolve the marriage up to the

228 Ibid.

229 Op. cit., 134.

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determination of the appeal. Mrs. Chibwe appealed against

In the Supreme Court, it was held that the lower courts had misdirected themselves in not considering the fact that Mr. Chibwe had acquired a lot of property during the subsist-ence of the marriage. These properties included leaseholds, household goods and business premises. It was found to be a misdirection that the lower courts which had sat with the assessors in Ushi customary law made no reference to that law in dissolving the marriage and in the property adjust-ments. 230 The justices held that customary law in Zambia is recognised by the Constitution provided its application is not repugnant to any written law. Accordingly, they ruled that, in accordance with the Ushi customary law, Mrs. Chibwe was entitled to a reasonable share in the property acquired during the subsistence of the marriage. They held further that the law applicable both in the High Court and the Supreme Court in divorce matters is normally the English law of divorce. This is by virtue of the English Law (Extent of Application) Act as read with Section 11 of the High Court Act. They cited Section 24 of the Matrimonial Causes Act, which deals with property adjustment. Under this section a party to divorce proceedings, provided he/she has contributed either directly

discretion. The court therefore ordered the transfer of one income-generating property to Mrs. Chibwe and a lump sum

of the family.

Fainess Banda v Edward Kansofwe – Land, Council house, ten-ancy 231

in the house from 1954 up to 1988 when they moved to

230 The Ushi are matrilineal.

231 Op. cit., 134

Council on Chimimba’s tenancy card. When the presidential directive to sell to sitting tenants was made, Kansofwe claimed

to purchase the house and therefore ordered that Kansofwe yield possession to her.

Henry Mpanjilwa Siwale and 6 others v Ntapalila Siwale - customary land, family interest, alienation. 232

In 1928 David Siwale was allocated 400 hectares of land by the colonial authorities. He settled on this land and developed it. However, he did not obtain formal title to this land because it was in a customary area. In October 1977, he invited his youngest son to settle on this land. After the death of his father, the son applied for title deeds in his own name for the property. He did not, however, consult any of his older brothers because they had not shown any interest in the land and had neglected their father. He was issued with a title for 200 hectares of the land in 1984.

The older brothers contended that the land was family prop-erty. After considering the evidence the court found that it would not be in the best interest of the family to include the names of the older brothers on the title deed and dismissed the application. The matter was appealed and went to the Supreme Court for hearing. The Supreme Court held that:

(1) In relation to land under customary tenure, the pres-ident shall not alienate any land situated in a district or an area where land is held under customary tenure without consulting any other person or body whose interest might be affected by the grant; and

(2) The older brothers were quite clearly affected by the grant of title deeds to their younger brother and for these reasons, the appeal was allowed and an order

232 ibid

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made that the older brothers be included on the title

Tembo Vs Tembo

an employee to assist her husband Mr. Tembo develop farm land acquired in his name. Later on Mr. Tembo was called into foreign service and Mrs. Tembo gave up her career to

to attend to the development of the farm and acquisition of

to Zambia almost destitute - without a job, allowance or pen-sion. She sold one of the properties (residential plot) and business equipment used in a hair salon business she had run.

houses on it. Mrs. Tembo went to live in the main house at the farm. Settling property in the matter, the court gave Mrs. Tembo a residential plot with a store room on it with an order for Mr. Tembo to build a house there for her. Mr. Tembo was awarded the farm with all houses on it. The court said Mrs. Tembo had sold one property and had therefore already

The formula the court employed was not a 50% share ac-cording to Mrs. Tembo and that of legal rights activists.

7 Local Laws and Policies

Local authorities are empowered under the Local Government

jurisdiction. The sale of council housing has reduced the

233

on motorists in the respective town centres and charging for services such as application forms for land, which were previ-ously provided free of charge. However, these measures are

233 Op. cit., 46. In the same article, it was reported that the Ndola City Council was

“some form of rates”. “We are exploring new ways of raising revenue like parking fees forwhich we have made considerable consultation and we have got a quotation from South

levels of revenue to be realised. Evidence from Kitwe and

and instead motorists pay for hourly permits that are then used for a whole day. Other levies such as those on busi-nesses not included in the retail category have been suggested but bylaws have not received approval from the Minister of Local Government. 234

Utilities such as water and electricity are paid for at the point of consumption but defaulting customers usually have their power or water cut off and the companies concerned impose reconnection fees, as well as demanding settlement of all arrears.

8 Implementation of Land, Housing and Property Rights

In the immediate post-independence era, the Zambian government pursued policies aimed at redressing the social imbalances of the colonial period and engaged in rapid im-provements to housing and the provision of basic services and infrastructure. The decline in copper prices in the mid-1970s had a negative effect on the government’s vision of improved housing supply and services, and efforts begun in this period stagnated or came to a virtual standstill in the ensuing decade.

The MMD government brought about policies that aimed to

-

parastatal, government, mine and council housing in a bid to “empower” citizens to own their housing.

The statistics on housing and access to basic services give a clear indication of the implementation of these rights in

March 15 and 17 2005, respectively.

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Zambia. These indicators serve to show that Zambia has a long way to go before supply adequately meets demand for housing and attendant social infrastructure. 235

8.1 Inadequacy of housing

The housing policies implemented after independence indicate a gradual shift from providing complete (conventional) low-cost housing to aided self-help schemes and squatter upgrading. Performance in squatter upgrading schemes fell below expectations due to inadequate funding as well as technical and community development problems. The consequence of this policy shift has been that a large major-

serviced at all. Access to amenities such as clean water and proper sanitation, roads, drainage and street lighting are at a low level and in many parts of the country have regressed. The development of infrastructure and communal services

drainage systems. Street lighting, where provided, suffered

services.

Although the government has committed itself to prioritising housing in national policies, most households are actually experiencing a decline in access to basic essential services.

8.2 Absence of affordable finance

set up to provide pension fund services, insurance services

235 The NHP estimated that, taking into account all the homeless families and theneed to replace substandard dwelling units, the backlog of housing in 1996 stood atapproximately 846,000 units. To clear the backlog over a 10-year period would requirea building rate of about 110,000 dwelling units per annum (page 7). The census of

household size of six persons gives approximately 1.7 million housing units in 2000. If thenumber of informal units were 70 percent of the total this would mean that the number ofunits in this category in 2000 had grown to about 1.2 million.

-ployed.

It is possible to envision how these three bodies could have

-

society rather than the poor. In the early 1980s the Zambia State Insurance Corporation, the Zambia National Provident

-

the country.

One of the main objectives enunciated by the NHP is the

the public and private sectors, and international agencies, and to develop mechanisms to assist vulnerable groups. The PHI created under the Chiluba MMD government tried to

the escalating cost of building materials, the low-cost houses soon became unaffordable for the low-income groups that they were intended to cater for.

8.3 Access to land

Access to land in post-privatisation Zambia has become criti-cal, particularly for many former miners and others who lost employment when the mines and parastatals were privatised. Many smaller companies and industries servicing the mines were affected by the uncertainty that earlier surrounded the mines sale, with further job losses resulting. 236 As a result,

land” in the peri-urban areas surrounding the Copperbelt towns, with the consequence that forest reserve land, private

Consortium (Avmin of South Africa, Phelps Dodge of USA, Noranda Mining of Canadaand Commonwealth Development Corporation of UK) was rejected by government asunacceptable. The Consortium eventually pulled out of negotiations and for a periodthe Zambian government had to continue supporting the mines while looking for otherbuyers. This period of uncertainty impacted negatively on the mines themselves as wellas other industries servicing the mines (see Kaunda, F. (2002) Selling the Family Silver: The Zambian Copper Mines Story. Interpak Books, KwaZulu-Natal.)

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and mine land has been invaded by squatters. Efforts are being made to resolve issues of illegal squatting in conjunction with the local authorities and major development NGOs, includ-ing Oxfam, WorldVision and Care International. Oxfam has been particularly active in this area by assisting peri-urban communities to gain legal tenure to land that they occupy. In this respect, the organisation has provided funding for the establishment of a Copperbelt Land Rights Centre, intended to provide a one-stop shop for land advocacy among low-income peri-urban communities.

With the implementation of the policy by government to allocate 30 percent of all land to female applicants, it still remains to be seen how well the local authorities will perform in redressing the traditional gender imbalances in this area

8.4 Security of tenure and evictions

The issue of security of tenure is a crucial one in these circumstances. A number of studies have shown that this is a critical factor in ensuring the enjoyment of a right to adequate housing and improving productivity, particularly among small-scale farming communities. 237 The CESCR recognises a variety of tenures including informal settlement. All persons should possess a degree of security of tenure that guarantees their protection from forced eviction. 238 The 1995 Lands Act explicitly prohibits illegal squatting and the Constitution offers no protection of a right to housing or basic squatter’s rights.

Three major actions against squatting in the recent past il-lustrate the Zambian government’s implementation of the provisions of Section 9 of the Lands Act 1995. All the incidents enumerated have been carried out against residents

237 Kenny, T. (2000). Zambia: Deregulation and the denial of human rights. QueenElizabeth House, Oxford University.

Hansungule, M. Feeney, P. & Palmer, R. (1998). Report on Land Tenure Insecurity on the Zambian Copperbelt. . OxfamGB, Zambia.

Care International Zambia. (2000).Copperbelt Livelihood Improvement Project (CULP) Progress Report.

238 Ibid.

place in September 2004.

2002. 239 In this incident, armed police acting on behalf of the Catholic Church, demolished 600 houses in an illegal set-

who had been resisting eviction over the six months prior to

without removing household goods. Police also beat and ap-

leading to the disputed land to protest the destruction of their homes.

The squatters complained that they had paid a former MMD

learn that the land belonged to the Catholic Church. “We were allowed to build our houses on this land by some MMD

with the Catholic Church over this land,” said one resident.

MMD Ng’ombe stamp dated September 8 2001, signed by a

plot in the ungazetted township did not, however, indicated a plot number but gave measurements as 20 by 25 metres. A representative of the Catholic Church said that the land belonged to the church, which obtained title deeds in 1964.

240 A 14-year

were rushed to the University Teaching Hospital after some residents responded to the destruction of their homes with

-ment in the early hours of the morning with two graders. The

239 Police demolish 600 houses. Times of Zambia, November 15 2002.

240 Boy dies, cops hurt in riot as residents hit back at council demolition squad.Zambia Daily Mail, November 27 2002.

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demolition of their structures. Residents, infuriated by the sight of their homes crumbling into dust, vented their anger

the teenager, who died on the spot. A stray bullet injured

-men injured.

-volved a piece of land for which the legal owner had title deeds. 241 Part of the farm was fenced off, however, a part was left unfenced and this portion was encroached upon by il-

illegal allocation of land. The owner obtained a court order requiring the estimated 500 squatters to vacate the land. The

the court order for some months without success when it was decided to call in the police. In the ensuing action, more than 30 people were arrested and several others wounded as police executing the order were met with resistance from the squatters. Police raided the area early in the morning and or-dered everyone to vacate immediately. The residents started throwing stones and other missiles. The police responded with tear gas. Chaos reigned as a group of 100 policemen,

the crowd of protesting squatters into the nearby Chainda

bars, houses and any other places they suspected to be har-bouring the resisting squatters.

dealing with illegal squatting. The use of party cadres to gen-erate support among illegal or informal settlement dwellers

-

It is not enshrined in any written law but the politicians and

illegal or informal settlement dwellers have a lot of power. There has always been an ambivalent attitude towards illegal 241 Squatters, police clash: over 30 residents arrested as they resist eviction, Times of Zambia, September 1 2004.

squatting because whichever party is in power derives sup-port from these settlements. 242

To deal with this situation it is necessary to depoliticise the issue of illegal squatting and informal settlements and allow

in the abovementioned cases indicates that the communities concerned believed that they had a right to stay where they were. Under the existing political machinery they have always been protected by the party, and are in most cases unaware

Delays in implementing the provisions of the HSIA affect the overall implementation of land and housing rights in the informal areas around the main cities of Zambia. The Racecourse settlement in Kitwe is an informal area where the land occupied by the illegal settlement consists of land zoned for industrial purposes and a former horse-racing circuit. In 1995, the Kitwe city council rezoned the area 243 of industrial land to conform to the needs of the township for residential land but the area has not yet been declared as an improve-

an improvement area lies in the council’s inability to fund a cadastral survey so that a plan of the proposed upgrading area can be submitted to the Surveyor-General in accordance with the requirements of the Act. 244

8.5 Property grabbing

One of the worst forms of rights violations with regard to inheritance and marital property is the practice of “property grabbing” after the death of a spouse. When the Intestate Succession Act became law in 1989, it was expected to deal

Young Women’s Christian Association indicates that in the year 2000 it handled 268 cases of property grabbing reported to its drop-in centres. The highest number of cases against women and orphans has been those connected to prop-

242 Op. cit., 108.

243 Zambia Daily Mail, January 14, 1995.

244 Director of Community Environmental Health Services, Kitwe City Council.Interview with the author. Kitwe City Council on March 15 2005.

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erty grabbing. 245 The NLACW continues to receive many inheritance cases that violate the rights of women after the

of the matters submitted to the clinic. 246 The Zambia Law Development Commission attributes the ineffectiveness of

commission advocates the outlawing of some traditional practices such as forced sexual cleansing of widows, which not only violates their rights but also increases the chances of contracting HIV/AIDS. 247

Recent evidence indicates that efforts to address these issues are beginning to bear fruit. The Kapisha Ward in Chingola

the Kapisha settlement, part of which is an informal settle-ment, and part of which is a site and service area. The pro-gramme provides legal aid and advice to vulnerable women and children. It has also been running awareness seminars on community issues and human rights issues. Only two cases

-

that community members were beginning to understand and accept the legal position. 248 At the YWCA Kitwe Drop-in Centre, 13 cases of property grabbing were recorded for the year 2004, 249 while the NLACW in Ndola had only two cases for the same period. 250 In relation to the issue of sexual

and the YWCA Drop-in Centre in Kitwe that these cases are declining as families understand the dangers of contracting HIV/AIDS under these circumstances.

245 Masuzyo, C. (2002). Intestate Succession law condemned. Times of Zambia,October 6 2002.

246 Ibid.

247 Ibid.

248 Musonda, C. Chimfwembe, A. & Mwansa, E. (2005). Interview with the author,March 15 2005.

249 Op. cit., 69.

250 Data provided by NLACW in Ndola on 17 March 2005.

In recognition of the problem of property grabbing and other forms of abuse the formation of the Victim Support Unit of the Zambia Police Service has been a welcome in-

of the deceased. It is also actively involved in prosecuting cases of domestic violence and child abuse. The unit was established in 1994 as part of the Public Service Reform Programme under the Zambia Police (Amendment) Act No. 14 of 1999 251 and operates at all police stations around the country.

9 Best Practices

Under international human rights law, secure tenure is one of the seven components of the right to adequate housing,

252 Zambia’s experience in this area revolves around the creation of an intermediate

residents of informal or illegal settlements that are undergo-ing the process of upgrading.

community in the adjudication process to formalise owner-ship and enable the transfer of occupancy licences to the community. Participatory and gender-sensitive approaches

the process to ensure sustainability and replicability of the

251 Chimbelu, E. (2005). Interview with the author, March 14 2005.

Sec. 53 of the Amendment Act states that (1) There shall be a Victim Support Unit at all

(2) The functions of a Victim Support Unit shall be: (a) to provide professional counselingto victims of crime and to offenders; and (b) to protect citizens from various forms of

and professional bodies in carrying out their duties.

252 Augustinus. C. & Benschop, M. (undated). Security of Tenure – Best Practices.UN-HABITAT Land and Tenure Section, Shelter Branch.

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documents within the community created a sense of owner-ship of the process.

The management of water supplies in informal settlements

Sewerage Company under the Urban Restructuring and Water Supply Project. The water system is managed jointly under the terms of a Memorandum of Understanding entered into

City Council and the Racecourse RDC. A system of vending

residents for each 20 litre container of water purchased. The money is then collected by the RDC and paid to the water utility.

The police Victim Support Unit is an innovation that has helped to curb incidences of property grabbing. The dissemi-nation of its activities through women’s NGOs such as the YWCA and NLACW, and the media, is enabling women to realise that they are not completely helpless when confronted with such situations.

10 Conclusion

This review of the law and land tenure arrangements that pertain to land, housing and inheritance rights in Zambia is an attempt to synthesise a very wide area that covers the

together the different pieces of legislation that relate to the mechanisms for delivering land and housing and inheritance

pieces of legislation are discussed within the context of the issues raised.

-ment’s efforts to enable its citizens to move from situations of

illegality and informality, and to acquire decent housing. The

which informal and illegal settlements can be regularised so as to enable the delivery of infrastructural and other social

seen in what has been achieved under the Act.

In the initial stages, the Act facilitated the development and upgrading of many informal settlements around Zambia’s urban centres. The Act provided local authorities with the tools to begin re-planning the many informal settlements and provided a platform upon which many low-income families were able to improve the quality of their shelter with assist-

since the 1970s, little progress has been made, mainly because

provisions of the Act can continue to be implemented.

While the Kaunda legislation of 1974 envisaged the legalisa-tion of squatter settlements under the provisions of the 1974 Housing Act, the Chiluba administration made it illegal for anyone to occupy land without proper authorisation, relying upon the provisions of the 1974 Act to deal with existing squatter areas.

The 1974 Act was meant to redress the historical imbalances in housing provision under the colonial administration that had led to the creation of illegal settlements on the fringes of the urban areas. At the time it was put in place technical and

situation of many poor urban residents. A technical support infrastructure had been created in 1971 with the coming into being of the National Housing Authority (NHA) under Act No. 16 of 1971. 253 The NHA was established principally

of housing throughout the country. Part of its mandate was the clearance and redevelopment of squatter areas and to

and appropriate construction materials. 254

253 Chapter 195 of the Laws of Zambia.

254 Cap. 195 s 21

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expertise that supplemented the efforts of the local authori-ties in the implementation of the 1974 Act in both upgrading schemes and the sites and services schemes. The changes in local government that came into being with the Local Administration Act, 1980 changed the face of local govern-ment by decentralising functions to the local level while at the same time withdrawing the levels of funding previously enjoyed by local authorities.

Thirty years after the HSIA was passed, it has clearly not had the intended effect on the provision and improvement of low-cost housing. The implementation problems that have

effort was made to streamline building regulations so that

improvement and statutory housing areas. There has been little change in the area of building regulations, so that in effect, most buildings in these areas are illegal in as far as the

this as one of the hindrances towards the attainment of the goal of affordable housing for many in the low-income

requirement to use materials whose cost in technology terms is very high.

Although the HSIA restricts the allocation of land in statu-tory and improvement areas it has been found to be quite

people from acquiring more than one plot. This has inevi-

these areas and construct large properties, depriving the poor

problems of the poor have become worse since the Act was

the majority that are affected being residents of low-income communities.

11 Recommendations

Zambia is a state party to a number of United Nations, African Union and other international conventions and char-ters including the Universal Declaration of Human Rights, CESCR and CEDAW. Under the Millennium Development Goals the Zambian government has committed itself to all the gender instruments and conventions, including the

1997, and its addendum on Violence against Women.

In view of the government’s commitments to these interna-tional instruments, it is imperative that the Constitution is

obligations. The directive principles of state policy that set out the state’s commitment to the provision of decent shelter have no time frame and are non-justiciable. While demon-strating government’s good intentions, these principles in themselves will not result in improved living conditions for the poor majority of the citizenry. Government needs to go beyond merely demonstrating its good intentions to ensuring that it is actively promoting the principles it is committed to. The absence of a clear strategy in the PRSP to deal with

demonstrated towards the NHA over the last 10 years, indi-

provision for the poor.

11.1 Law and policy reform

ConstitutionThere is an urgent need to amend the Constitution, in particular Art. 23(4), which discriminates against women. Another provision should be included in the Constitution, which declares customary laws to be null and void to the extent that they are discriminatory. At the time of writing a constitutional review process was underway.

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The right to adequate housing, which includes access to land, services, affordability etc. (see CESCR General Comment no. 4) should be explicitly recognised in the Constitution.

recognise squatter’s rights. The absence of a provision in Zambian law for an occupier of land to apply for legal title after occupation over a number of years (adverse possession)

Land ActThe absence of any formal safeguards relating to the protec-tion of women’s rights in the land law needs to be addressed.

written into law and monitored in effect. With the current institutional problems relating to the allocation of land, there is need a for a monitoring system to ensure that the policy

-location principle. Without credit, women who are allocated unserviced, undeveloped land have no means to actually

-ment expires.

While joint title and registration of land between spouses is an option in Zambia, there is evidence that this option hardly ever leads to actual joint titling/registration. Instead what is needed is a presumption of joint title for the plot of land and/or house that is shared by both spouses that can be changed into sole title if both spouses come forward to indicate that this is their wish. Such a rule protects women’s interest to a much larger extent and it is recommended that such a provision is included in the Land Act.

Local Government (Urban Building and Drainage) Regulations of 1968

-ible building standards and materials, allowing for cheaper local materials that can still satisfy health and safety require-ments, particularly for Improvement Areas and informal set-tlements. Such areas could also be isolated as “special zones”

such areas.

Rent ActStricter controls should be put in place to deter landlords

which individual rooms are rented out to families without corresponding sanitation provision.

Marriage law

the current, different regimes and formalises them under one uniform legal code is imperative. A choice of marital prop-erty regimes should be given in the Marriage Law, with the accrued community of property, or community of property system as the default regime, which would protect women’s rights within marriage more than in the current situation.

Inheritance lawCustomary land should be included under the Intestate Succession Act, along with recognition of a widow’s right to inherit the family house rather than simply have a life inter-est. The current situation is in effect a gendered bias (which is contrary to international human rights law) and fails to recognise women’s contribution to the realisation of such an asset.

and customary law need to be harmonised. This should be

-ary as well.

more accessible.

National Gender PolicyIts objectives should be integrated with other policies.

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11.2 Governance

The number of women MPs, judges, ministers and local councillors needs to be increased.

There should be a transparent budgeting process involving civil society and the public to ensure accountability in the disbursement of service charges revenues collected by local councils.

We recommend stricter supervision and independent audit-ing of land allocation in local councils through submission of annual returns to the Lands Tribunal, Administrator General or other autonomous body.

11.3 Capacity building

MarriageIf different marital property regimes are introduced in a new Marriage Law, it is important to ensure that married couples are properly informed about the marital regime they wish to be married under, and the rights and obligations offered by each.

Training of land officials-

ing and inheritance cases need to undergo training on the

judges also need to be trained on the plight of widows, so that they can ensure that widows fully understand what they agree on during the court session.

11.4 Land management

The division between local and central government land registration systems creates the sense that one type of title is inferior to the other. A reform of the registration require-ments under the HSIA and the Lands and Deeds Registry Act

the function performed by council land registries and the

Lands and Deeds Registry under the Commissioner of Lands is essentially the same. The simpler survey requirements for site and service and improvement areas can continue to be

form of a district land registry dealing with all land registra-

registration process more effective, accessible and account-able to the needs of the local people in that district.

11.5 Coordination

the land registers, in order to be able to see whether a land titleholder is married or not.

There should be increased coordination between ministries regarding land, housing and gender issues.

We recommend an integrated land information and manage-ment system implemented by the Lands Registry, allowing for input and queries from the ministries involved in land management and local councils to resolve the double alloca-tion of land.

11.6 Implementation

The NHA has a legal mandate in the upgrading of squat-ter settlements but has been sidelined over the last decade. Government should allow the NHA to play its role in the management of urban housing and land by ensuring that im-plementation of the NHP is handled by NHA and requisite funding is provided.

The “land tenure initiative” started by Sida and the city

the general direction of the NHA together with the Ministry of Local Government and Housing for all urban areas with informal settlements.

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There should be urgent application of provisions of the HSIA to remaining illegal settlements where there are no impediments to their regularisation.

-

Gender disaggregated data should be collected.

11.7 Simplify procedures

Lands Tribunal should be decentralised to district level.

11.8 HIV/AIDS

There should be a national policy to address issues of or-phans and vulnerable children with respect to inheritance and property issues, and incorporation of HIV/AIDS strategies

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Chiwele, D.K. (2002). Local Governance, Participation and Accountability: The Zambia Case Study

Land Law and Policy in Zambia after Kaunda.Policy and Reform: The Moses Kaunda Memorial Lectures,

Traditions, Culture and Customary Law Relating to Rights of Women and Children. Paper presented at Sensitization

Cadastral Surveys within the Commonwealth. HMSO, London.

Zambia Land Delivery System. 1988. Consultancy Report for Ministry of Lands, Water and Natural Resources.

Report on Land Tenure Insecurity on the Zambian Copperbelt.

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Kaunda, M. (1993). Land Policy in Zambia: Evolution, Critique and Prognosis. Unpublished PhD Thesis, University of Cambridge,

Kenny, T. (2000). Zambia: Deregulation and the denial of human rights. Queen Elizabeth House, Oxford University.

Khonje, G.A.C. (1983). Consumer Acceptability of Low-Cost Housing in Zambia. Unpublished PhD Thesis. University of New South Wales, Australia.

Knauder, S. (1982). Shacks and Mansions: An Analysis of the Integrated Housing Policy in Zambia. Multimedia Publications.

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HIV/AIDS and the Law: Challenges for Women.

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Mashamba, M.S. (1997). The Construction Industry in Zambia: Opportunities and Constraints under the Structural Adjustment Programme and the Enabling Shelter Strategy. Unpublished PhD Thesis, University of Newcastle Upon Tyne, Newcastle.

Mtamira, C. (2002). Presentation during the African Regional Civil Society Consultation on Women and Adequate Housing, Nairobi, October 31 2002.

Mulwanda, M. & Mutale, E. (1994). Never mind the people, the shanties must go: The politics of urban land in Zambia. Cities, Vol.11 (5), pp. 303-311.

Mundia, I. (2004). Current Land Alienation Procedures at Kitwe City Council. Presentation by Director of Legal Services, Kitwe City Council.

Mvunga, M.P. (1980). Land Law and Policy in Zambia

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Widening the Resource Base of Kitwe City Council. SINPA ‘Support to the implementation of the National Plan of Action (Zambia). Institute for Housing and Urban Development Studies (IHS), Rotterdam.

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Purdy, R. (1984). The Zambian Judicial System: A Review of the Jurisdictional Law in Ndulo, M. (ed.) Law in Zambia. East African Publishing House, Nairobi.

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Republic of Zambia. (2002), Draft Land Policy

Republic of Zambia. (2002). Poverty Reduction Strategy Paper.

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Schlyter, A. (1998). Housing Policy in Zambia: Retrospect and Prospect. Habitat International, Vol. 22, No. 3, pp.259-271.

Schlyter, T. Schlyter, A. (1979). George – the Development of a Squatter Settlement in Lusaka, ZambiaResearch, Gavle.

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Zambia Daily Mail

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Kitwe tenants demand refund from council. Zambia Daily Mail

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List of persons and organisations interviewed

LUSAKA

Ministry of Lands

Mr. N. Inambao, Commissioner of Lands

Ministry of Local Government and Housing

Mr. Wina, Assistant Director Physical Planning.

KITWE

Zambia Police Service, Victim Support Unit

Chief Inspector Chimbelu

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YWCA

Kitwe City Council

Mr. Mbaimbai, Director, Administration

Mrs. I. Mundia, Director, Legal Services

William Nyirenda and Company (Advocates and Notaries Public)

William Nyirenda SC, Senior Partner

MUFULIRA

Mufulira Municipal Council

Mr. G. Kaluba, Deputy Director, Administration

Mr. D. Mulenga, Paralegal Adviser (Minambe).

NDOLA

Ndola City Council

NLACW

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Mrs. D. Mushinge, Paralegal Coordinator.

CHINGOLA

Mrs. C. Musonda, Paralegal Adviser

Mr. E. Mwansa, Paralegal Adviser.

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APPENDIX

Appendix I: International human rights law and Southern Africa

Equal land, housing and property rights are recognised in various international human rights instruments, including:

The Universal Declaration on Human Rights (UDHR) 255:

Article 17 recognises every person’s right to own property and prohibits arbitrary deprivation of it;

Article 2 entitles everyone to the rights and freedoms laid down in this Declaration, without discrimination; and

Article 16 entitles men and women to equal rights as to, during and upon dissolution of marriage.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) 256:

Article 11(1) recognises the right to adequate housing 257;

Article 2(2) prohibits discrimination; and

Article 3 recognises equal rights between men and women.

The International Covenant on Civil and Political Rights (ICCPR) 258:

Article 3 recognises equal rights between men and women;

Article 17 lays down the right to protection from arbitrary or unlawful interference in a person’s home;

Article 23(4) requires appropriate steps to ensure equal rights as to, during and upon dissolution of marriage (including marital property rights); and

including sex, race and ethnicity.

259:

Article 5(e) paragraph (iii) recognises the right to housing. These housing and property rights include the right to re-turn. 260

255 Universal Declaration of Human Rights, adopted on 10/12/1948 by General Assembly Resolution 217 A (III), UN GAOR, 3rd Session.

256 International Covenant on Economic, Social and Cultural Rights, adopted on 16/12/1966. General Assembly Resolution 2200 (XXI), 21st Session, Supp. No. 16, U.N. Doc.

257 The right to adequate housing consists of the following elements: (1) legal security of tenure irrespective of the type of tenure; (2) availability of services, materials, facilitiesand infrastructure; (3) affordability; (4) habitability; (5) accessibility (including access to land); (6) location; and (7) cultural adequacy. See UN Committee on Economic, Social andCultural Rights, General Comment No. 4 on the Right to Adequate Housing. See UN Doc. EC/12/1991/41 (1991). For full text see: http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/469f4d91a9378221c12563ed0053547e?Opendocument

258 International Covenant on Civil and Political Rights, adopted on 16/12/1966 by General Assembly Resolution 2200 (XXI), Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S.

259 International Convention on the Elimination of All Forms of Racial Discrimination, adopted on December 21 1965 by General Assembly resolution 2106 (XX), entry into force on

260 See UN Committee on Elimination of Racial Discrimination, General Recommendation nr. XXII on Article 5: Refugees and Displaced Persons, 1996. Available on: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/fed5109c180658d58025651e004e3744?Opendocument

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261:

Article 13 requires the elimination of discrimination against women in areas of economic and social life to ensure

-tion, electricity and water supply, transport and communications; and

Article 15 accords women equality with men before the law, and recognises their equal right to conclude contracts and administer property.

The Convention on the Rights of the Child (CRC) 262:

Article 27 recognises the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.

The Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries 263:

Article 7 recognises the right of indigenous and tribal peoples to their own decisions regarding the land they occupy or otherwise use;

-tional human rights;

Article 14 requires the recognition and protection of the right to ownership and possession over the lands which indig-enous and tribal peoples traditionally occupy, and the right of use for subsistence and traditional activities; and

Article 16 stipulates that relocation from land has to be done with free and informed consent, the right to return or equal land and compensation.

The African Charter on Human and Peoples’ Rights (ACHPR) 264: Article 18(2) and (3) require states that are party to the charter to ensure that “every” discrimination against women is eliminated, and that the rights of women and chil-dren are protected.

The African Union Protocol on the Rights of Women in Africa (“Women’s Protocol”) 265:

Article 7(d) recognises women’s equal rights to an equitable share of joint property deriving from separation, divorce or annulment of the marriage;

by women to judicial and legal services, including legal aid; (b) support initiatives towards providing women with access to legal aid; (c) sensitisation to the rights of women; (d) equipping law enforcement organs to effectively interpret and

261 Convention on the Elimination of All Forms of Discrimination Against Women, adopted on 18/12/1979, General Assembly Resolution 34/180, U.N. G.A.O.R., 34th Session, Supp.No. 46, U.N. Doc. A/34/36 (1980), entered into force 3/9/1981. As of March 2005, 180 states had become party.

262 Convention on the Rights of the Child, adopted on 20/11/1989 by General Assembly Resolution 44/25, U.N. Doc. A/44/25, entered into force on 2/9/1990. All states except U.S.A.and Somalia have become parties.

263 Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries,Adopted on 27 June 1989 by the General Conference of the International Labour Organisation at its seventy-sixth session. Entered into force on 5 September 1991. Convention 169

264 The African Charter on Human and Peoples’ Rights adopted on 17/6/1981 by the Eighteenth Assembly of the Heads of State and Government of the Organisation of African

265 The African Union Protocol on the Rights of Women in Africa was adopted on 11 July 2003 in Maputo, Mozambique. Assembly/AU/Dec. 19 (II).

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enforce gender equality rights; (e) equal representation of women in judiciary and law enforcement organs; (f) reform of existing discriminatory laws and practice;

Article 9(2) binds state parties to ensure increased and effective representation and participation of women at all levels

Article 16 recognises women’s right to equal access to housing and to acceptable living conditions in a healthy environ-ment, irrespective of marital status;

Article 19(c) commits state parties to promote women’s access to, and control over, productive resources, such as land, and guarantee their right to property;

Article 21(2) recognises the equal rights of sons and daughters to inherit property; and

women in distress.

The table below provides an overview of which countries in southern Africa are party to these different human rights instru-ments. 266

Treaty Angola Botswana Lesotho Malawi Mozambique

ICESCR YESa: 1992 NO YES

a: 1992YESa: 1993 NO

ICCPR YESa: 1992

YESs: 2000r: 2000

YESa: 1992

YESa: 1993

YESa: 1993

Optional Protocol to ICCPR of 19668 YESa: 1992 NO YES

a: 2000YESa: 1996 NO

ICERD NO YESA: 1974

YESa: 1971

YESa: 1996

YESa: 1983

CEDAW YESa: 1986

YESA: 1996

YESs: 1980r: 1995

YESa: 1987

YESa: 1997

Optional Protocol to CEDAW of 19999 NO NOYESs: 2000r: 2004

NOs: 2000, but not yet ratified

NO

CRCYESs: 1990r: 1990

YESA: 1995

YESs: 1990r: 1992

YESa: 1991

YESa: 1991

Convention 169 on Indigenous and Tribal Peoples NO NO NO NO NO

ACHPR YESr: 1990

YESR: 1986

YESs: 1984r: 1992

YESr: 1989

YESr: 1989

Women’s protocol to ACHPR of 2003 (not yet entered into force) NO NO YES NO NO

acceding to an international or regional agreement, the state becomes party to it is bound to the obligations laid down in that agreement. If the state only signs but does not ratify, it is

indicates “acceded”.

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Treaty Namibia South Africa Swaziland Zambia Zimbabwe

ICESCR YESa: 1994

NOs: 1994

YESa: 2004

YESa: 1984

YESa: 1991

ICCPR YESa: 1994

YESs: 1994r: 1998

YESa: 2004

YESa: 1984

YESa: 1991

Optional Protocol to ICCPR of 1966 YESa: 1994

YESa: 2002 NO YES

a: 1984 NO

ICERD YESa: 1982

YESs: 1994r: 1998

YESa: 1969

YESs: 1968r: 1972

YESa: 1991

CEDAW YESa: 1992

YESs: 1993r: 1995

YESa: 2004

YESs: 1980r: 1985

YESa: 1991

Optional Protocol to CEDAW of 1999YESs: 2000r: 2000

NO NO NO NO

CRCYESs: 1990r: 1990

YESs: 1993r: 1995

YESs: 1990r: 1995

YESs: 1990r: 1991

YESs: 1990r: 1990

Convention 169 on Indigenous and Tribal Peoples NO NO NO NO NO

ACHPRYESr: 1992

YESs: 1996r: 1996

YESr: 1995

YESs: 1983r: 1984

YESs: 1986r: 1986

Women’s Protocol to ACHPR of 2003 YES YES NO NO YES

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UNITED NATIONS HUMAN SETTLEMENTS PROGRAMMEP.O. Box 30030, GPO Nairobi 00100, KENYA

Telephone: 254-20-7623120; Fax: 254-20-7624266/7 (Central Office)E-mail: [email protected]; Website:http//www.unhabitat.org

HS/789/05EISBN NUMBER (Series) : 92-1-131768-1

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